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Wills and Will Knots
Linda Goin
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 Archives |
Whether you own a mansion or just the shirt on your back, anything with your name attached is mostly considered your property in the eyes of the law. When you die, that property is given to someone else according to your wishes, or the state claims it to dispose of at its convenience.
"Mostly considered your property," means, in a given state, you may have property taken away from you. Yeah, I'm talking about marriage again, and this time it's about wills and community property laws.
If you read the previous article, you know marriage abided by civil or common law means you become part of a partnership. Partnerships connote business, and business usually entails financial entanglements. When you live in a civil or common law union with another person within the states of AZ, CA, ID, LA, NV, NM, TX, WA, and WI, you and your spouse share property on a 50-50 basis.
For example: suppose if you earn $45,000 per year and you own your own home with just your name on the deed. If your spouse earns $12,000 per year and doesn't bring anything else to the marriage, he still owns 50% of everything contained within the marriage from both sides once you tie the knot. If you both agree to a divorce, chances are you'll lose a good portion of the property you brought into the marriage unless you signed agreements to the contrary.
Another complication involves wills you or your spouse designed while single or during previous marriages. In most cases, these older wills are valid even after a new marriage. This can create quite a headache for heirs if you don't take your new status into account. States that don't base marriages on community property laws still often allow your spouse about one-third of your assets, even if you don't intend for him to claim the property after your death.
Let's say you live in Texas, earn $50,000 per year, and you
have two grown children from a previous marriage. You own your
own home free and clear with just your name on the deed, and
you have a healthy portfolio of diversified equities. A man
lives with you, and he's not the husband of your children. Both
of you keep to yourselves, and the neighbors and relatives aren't
privy to your affairs. You're healthy and very busy, so you
haven't bothered with a will. You and this man have never talked
about marriage.
One day you wake up dead in this house in Texas. Of course, you won't be concerned with mortal matters, but your children might be very upset. The courts hear your roommate out, and decide he was legally bound to you in a common law marriage (approved by that state). On top of this, the state also respects community property laws. Your children may lose half of what you owned and intended for them upon your death.
There are always exceptions to the rules, but most times it takes a court case and time. If you're adamant about staying in Texas, then your life and death will be played out according to those laws. If you don't like the laws, then you need to work hard to change them, or move to another state. You take your actions from Texas with you, so be careful about any common law incident you may have practiced before you move on.
The most practical option is to learn and understand your state laws and protect yourself with updated and current documentation. Your will is an instrument that assures your heirs will retain your property when you die. Your contracts with your significant other will back up your will.
If both your prenuptial agreements and wills are consistent, the state probably won't have a problem with your intentions. If you don't intend to marry your partner, you could draft an agreement with him that states you both are free and clear of commitment. Make sure your will is also updated to reflect this change in your life.
Once the paperwork is done, you can rest in peace while you can enjoy it - as long as nothing changes. Any major event in your life requires a good look at your documents, and you need to change the paperwork if your life changes dramatically - even if it's only within a few months' time.
Just one other bit of advice...if you both are tempted to use
a kit for wills or for prenuptial agreements, you both still
need to use separate attorneys to view the final versions. Only
an attorney who is familiar with all the ins and outs with your
state laws can protect you. The money you spend on this practice
could be just a pittance compared to what you and your heirs
could lose.
If you and your partner are upfront and honest, you'll want to look over each other's documents after the visit to the attorney. There have been many surprises after the death of a significant other. I could tell a few stories, but there's always going to be a new one tomorrow. After all, someone had to write the script for the "Twilight Zone."
Of course, there are many stories, and there are many reasons to either stay single or to commit to marriage. Each story has its own plot with you as the author, and your attorney as the editor. Hopefully, you'll publish a happy, productive, and peaceful life, and you'll leave a legacy as a woman who cared about herself and her loved ones.
Until Next Week,
Linda Goin
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