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Does Marriage have an Impact on a Will?

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March 8, 2022 •  Emily Hicks Law, PLLC
Being married is significant both for a married person’s lifetime estate planning and subsequent administration of the estate at death. Important rights and responsibilities exist between married persons.

A couple of years ago, I had an elderly client come into my office stating that she recently got married again.  She and her significant other were living in the same assisted living facility and despite the fact that both were close to eighty years old, they insisted on getting married.

Of course, the family members took a different view.  Both sides of the family opposed the marriage and thought it would complicate the estate planning.  But it was too late.  The marriage went ahead without warning to anyone and without any pre-nuptial agreements in place.

The result of the marriage meant that she would be entitled to inherit from her husband from what assets he had left, which was about $100,000.  His children did not take kindly to the idea that a woman their father just met is now entitled to inherit money from his estate when he dies.

And he did die, about six months later.  Unfortunately, they never got around to executing the marital agreement I prepared for them that protected each family from the unintended consequences of inheriting assets that were meant for the children.  He also never updated any of his estate planning documents.  And it was a bit of mess and quite a bitter end.  And it all could have been avoided.

You see, it is very difficult to challenge a marriage once it has occurred, since the capacity needed to marry is relatively low. Even a person who is under conservatorship because they are severely incapacitated may marry, unless there is a court order stating otherwise, says the article “Estate Planning: On Being Married, estate planning and administration” from Lake Country News. This unfortunate fact leaves the elderly prey to scammers who would woo and wed their victims.

Once a couple is married, they owe each other a duty to treat each other fairly. In certain states, they are prohibited from taking unfair advantage of each other. Depending on the state of residence, property is also owned in different ways. In a community property state, such as California, marital earnings and anything acquired while married is presumed to be community property.

In a community property state, debts incurred before or during the marriage are also shared. In a number of states, marriage is sufficient reason for a creditor to come after the assets of a spouse, if they married someone with pre-marital debts.

There are exceptions. If a married person puts their earnings during marriage into a separate bank account their spouse is not able to access, then those deposited earnings are not available for debtor spouse’s debts incurred before the marriage took place.

In Florida, the spouse is entitled to an elective share of the estate, which is 30% of the estate.  And this applies no matter how long a couple has been married.  The original intent of the elective share was to protect widows dependent on their husbands for income, so that they could not be disinherited.

If a married person dies without a will, also known as “intestate,” the surviving spouse is the next of kin.  Florida law provides for the scenario that if you die with a surviving spouse with children from a prior marriage, such as the example of my client's husband above, the spouse and children inherit 50/50.

So, that means that my client was entitled to 50% of the estate of her husband, if he died without a will, and his children will inherit 50%.  In any case, no matter if he had a will or not, she was entitled to the elective share of 30%, because you cannot disinherit a spouse in Florida.  Unless you have a pre-nuptial or post-nuptial agreement in place stating so.

These are all reasons why couples should have frank discussions about finances, including assets and debts, before marrying. Coming into the marriage with debt may not be a problem for some people, but they should be advised beforehand. Marriage brings rights and responsibilities which impact life and death for a couple. Starting a marriage based on full disclosure and proper planning clears the way for a focus on togetherness, and not solely the business side of marriage.

A pre-nuptial agreement should state the terms of the couple’s financial health as individuals and declare their intentions. An experienced estate planning attorney can create a pre-nuptial to align with the couple’s estate plan, so the estate plan and the pre-nuptial work together.  This would have been the ideal scenario for my client's husband.  It could have saved a lot of heartaches and headaches for their families.

Reference: Lake Country News (Feb. 12, 2022) “Estate Planning: On Being Married, estate planning and administration”

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