How Your Marital Status Affects Your Estate Plan
Traditionally, June has been the most popular month of the year to marry and there are many reasons why. The Roman goddess of marriage, Juno, is said to be a protector of women, in particular in marriage and childbearing so for those who marry in June it was said they would be blessed with prosperity and happiness. That sounds pretty inspiring as opposed to another reason that came about during medieval times. At that time people only bathed about once a year and that was usually in the spring, so it was common to marry while the bride still smelled relatively fresh, but just to be safe, she carried a bouquet of fresh flowers to mask any unpleasant odors.
Today, June is still a popular month for weddings, but as we know while the wedding is a momentous occasion, the wedding is just a celebration of the main event which is the actual marriage. In estate planning, getting married changes things quite a bit in the eyes of the law so we should update our estate planning documents to reflect that change in status.
Most states, including West Virginia, have laws that help cover the gaps for those who do not update their estate planning documents when they marry. The general presumption is that we would want to include our spouse as an heir of our estate. But, the law also considers how we would wish to provide for our children. If all of the children are joint biological or adopted children of the spouses, West Virginia law presumes, the surviving spouse will take care of the children and she will be the sole beneficiary of the estate.
It gets a little more complicated if either spouse has children outside of the marriage, even a well-written law cannot anticipate our personal family dynamics. Accordingly, for achievement of their goals, many people formally document their intentions in their estate planning documents. Generally, if there are children outside of the marriage, the law will just reduce the amount that goes to the surviving spouse to make sure that the decedent’s children are provided for.
In some cases, a decedent may have purposefully or inadvertently disinherited his spouse. If there was a prenuptial agreement that stipulated this outcome, then that is usually honored. But otherwise, the law protects that survivor by providing a process for them to “elect against” the deceased spouse’s estate. The amount that they are entitled to varies based on how long they have been married but the maximum is one-half of the estate.
While a person may be fine with those potential outcomes, it does not take into consideration whether the spouse or child should inherit outright or have their inheritance controlled by a trust. Sometimes heirs are not healthy, are spendthrifts or may not have reached adulthood when they inherit. All of these situations cause complications. Unfortunately, if the children are minors, they are entitled to their entire share once they attain the age of eighteen years. My clients generally prefer the children to not have full access at such a young age.
Ideally, every adult should have a valid will that clearly lays out their decisions as to who their heirs are and when they will inherit their share of the estate. Most of us have worked very hard for whatever we have so it seems foolish to leave inheritances disbursed per default state laws or based on a will that was not professionally drafted