The Legal Implications of Marriage

The act of marriage is significant. You may not know that the act of marriage alone can affect the structure of your estate plan.

For example, in most states, a new spouse is automatically entitled to a portion of a deceased spouse's estate (often 1/3) regardless of the terms and provisions of the deceased spouse's Will. Certain retirement plans will automatically change the primary beneficiary to a new spouse, regardless of whether the deceased spouse has an existing beneficiary designation naming another individual, such as a child.

These two examples occur automatically, absent additional planning. If you are contemmplating marriage and especially in cases of a second marriage, please consider the legal consequences of such action. You may be ok with the result, but you might want to discuss a prenuptial agreement or other arrangement. Most folks say that you should not enter blindly into marriage. That advice should also apply to the legal and financial consequences of that instituion.

Who Gets the Kids?

A very common reason for signing a Will is to utilize the document to name guardians for minor children. Many times parents have difficulty selecting a guardian to care for their children and because of that fact delay signing a Will.

There is no time like the present to have a Will in place. I offer two pieces of advice when people delay signing a Will because they do not know who to name as guardian for their children:

1. Treat the selection of your guardian like most political elections. You may not like the candidates on the ballot, but you have to select the best one. It is better that you select the guardian, rather than a court doing it for you.

2. Do not name a guardian in your Will, but rather plan on using an amendment to the Will or a separate document (which most states allow) to name your guardian when you are ready.

The New American Family

I read an article the other day stating that there are more "blended" than traditional families in the United States. A blended family can be loosely defined as one where children in the household do not share the same parents (as a result of second marriages, etc.). Regardless of whether the statistics are true, there are certainly many blended families in this country. These families need to address their estate planning with even greater care and consideration.

The first question to ask is "where do I want my assets to pass when I die?" Where all children are shared by both spouses, the answer is typically "to my spouse, if he or she is living" (with the understanding that the surviving spouse will one day provide for your children). However, if you have a child from a previous marriage and leave everything to your new spouse, there is no guarantee (absent more advanced planning) that your surviving spouse would ever benefit your child.

Terrible controversies can arise in blended families where there is a lack of thoughtful estate planning. Another common dilemma is a parent leaving all personal property (e.g., collectibles, china, jewelry, guns) to a new spouse (to the exclusion of a child). Such a common bequest could cause resentment and ill feeling, as the child may feel that their step-parent now has all of their parent's sentimental family property. A parent may alleviate this controversy by simply leaving a few sentimental family items directly to their children.

There are unfortunately many anecdotal examples of conflicts in blended families. Most of these conflicts can be easily avoided or alleviated by simply engaging in basic planning. The starting point is to begin asking yourself, "what if ..."