My husband and I were married this past May 25, so today we are celebrating our sixth mensiversary (or, perhaps our semi-anniversary?). Our marriage has truly been a great blessing for both of us—doubly so because we waited until later in life to find each other. As a probate and estate lawyer, I’d like to report that as soon as we got married, we set up a trust and put all our assets in it, so that we’re perfectly prepared for the day when death does us part. However…it seems that life is a bit messier and more complicated than that, even for lawyers in love. We’ve each taken the step of updating our wills, and many of our assets are now jointly owned; but truth be told, we have a way to go before we are done combining our assets.
How does marriage change your estate planning needs? I’ve had opportunity to reflect on this recently not only because of my own life, but also because of some of the cases I’ve worked on. In one case, a couple cohabited for several years before the man died. He left no will, so pursuant to intestate succession, his child will inherit his estate. However, the former girlfriend has made a claim against his estate, claiming that they held their property in a kind of quasi-community property agreement. Would it have made a difference if they’d been married?
Yes and no. Simply getting married doesn’t mean your property is jointly held or will go to your spouse upon your death. Nevada is a community property state, meaning that money earned or assets purchased during marriage are presumed to be community property in which each spouse has fifty percent interest. Upon death, the surviving spouse inherits the other half of the community property, unless the deceased spouse provides otherwise in his or her will. Property that you owned before marriage is separate property and remains so unless you make a gift of it to the community of your marriage. Your spouse may inherit a portion of your separate property, but a portion will go to your natural relatives (children from previous marriage, parents, siblings)—again, unless you provide otherwise by will. Things can get very complicated if your assets become mixed in character; for example, if you have a house partially paid off that you bring into the marriage, and you finish paying it off while married. The house is separate to the degree you paid for it before marriage and community property to the degree that your income during your marriage was used to pay the mortgage.
My husband and I have not been married previously and neither of us has any children. If we have no children together, we will need to make provision for how our assets will be distributed upon the death of the second spouse—it will need to go to charities we both agree on, or equally to our surviving relatives. In the case of people who have children from a previous marriage or relationship, things are more complicated. You need to provide for your children while taking into consideration the needs of your new spouse.
Don’t put off your estate planning—consider it an act of love for your family, who doesn’t want to be left with a mess. Contact Woodburn and Wedge for expert advice and assistance with estate planning, trust and probate matters.
Nevada Estate Planning and Probate 