Does Marriage have an Impact on a Will?

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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.

Marriage is a life-changing event that significantly affects various aspects of a person’s life, including their financial affairs and estate planning. There are potential consequences to marriage, or divorce and remarriage, on an individual’s will and their estate planning choices.

It’s important to note that contesting a marriage after it’s been formalized can be a difficult task. The legal capacity required to marry is minimal, allowing even individuals under guardianship due to severe incapacitation to wed, barring a specific court order to the contrary. Regrettably, this leniency sometimes enables unscrupulous parties to exploit vulnerable individuals through marriage.

On the flip side, we encounter “putative” spouses – individuals who, despite their earnest belief, aren’t legally married due to some defect in the marriage’s legality. This could occur, for example, in cases of bigamy, where one party enters into a new marriage without having legally dissolved a previous one.

Upon entering into marriage, the spouses inherently commit to treating each other with fairness. The manner in which property is owned within a marriage depends on the state of residence. Texas, for instance, is a community property state, meaning all earnings and acquisitions during the marriage are generally considered shared assets.

Similarly, in community property states like Texas, debts incurred before or during the marriage are usually a shared responsibility. This can mean that marriage might invite creditors to seek repayment from the marital assets, even if the debt was incurred by only one spouse prior to marriage. However, exceptions exist. For instance, if one spouse deposits their earnings into a separate account inaccessible to the other, those funds would typically remain shielded from the indebted spouse’s pre-marital liabilities.

In the absence of a valid will – a state referred to as “intestate” – the law usually regards the surviving spouse as the primary inheritor of the decedent’s estate. However, this can potentially leave children from a previous marriage without any inheritance, emphasizing the need for comprehensive estate planning.

Understanding these intricacies underscores the importance of candid discussions between potential spouses about their financial circumstances, including assets and liabilities, before entering into marriage. A pre-nuptial agreement, drafted with the guidance of an experienced estate planning attorney, can clarify the individual financial status of each party and clearly articulate their mutual intentions. Ideally, this agreement should be harmonized with the couple’s estate plan, ensuring a seamless integration of their financial arrangements.

Marriage, undoubtedly, comes with a multitude of rights and responsibilities that affect various aspects of life, including estate planning. Hence, a well-informed start, underpinned by full financial disclosure and prudent planning, can set the stage for a focus on unity and partnership, rather than the mere business mechanics of marriage.

If you or a loved one needs assistance elder law or estate planning issues, do not hesitate to BOOK A CALL using our calendar. We are here to help.