Ties That Bind

Marriage is a tie that binds two people together legally. Although people generally enter into marriage with high hopes for an enduring relationship, sometimes the relationship falters. While a legal separation or divorce can sever the legal tie between a couple, there are still many couples today who are married in name only or even estranged from each other.

In my practice I have seen the situation in which a person dies and long after the funeral the relatives were surprised to learn that the deceased was still married. The deceased had physically separated from his or her spouse years ago but a divorce was never obtained because of the time and expense involved, because of continued family ties or other extenuating circumstances. I have also seen the case where the marriage was essentially “over”, the couple was contemplating divorce (or may have even begun the process), but one of the spouses died before a legal separation or divorce was obtained.

Marriage profoundly affects inheritance rights. The law does not care if the couple had separated 15 years ago, were engaged in new relationships, had been living with someone else, and maybe even had children from another relationship. The only question that matters in the eyes of the law is: what was the deceased’s marital status on the day he or she died – married (including domestic partnerships), legally separated or divorced?

Unless a person has a will or living trust designating otherwise, upon death his or her spouse is entitled to receive all of the community property and a portion of the deceased spouse’s separate property. When someone contacts me concerning estate planning in the face of a marriage breakdown, I always suggest that the person immediately execute a will designating who they would like to receive their half of the community property and any separate property they own in the event of death. I also recommend that they change the manner of holding real property from joint tenancy to tenancy in common. While divorce proceedings usually involve a freeze on the transfer of assets to maintain the status quo until the process is concluded, a will can provide some protection from the blind application of laws relating to spousal rights of inheritance in the event of a death while proceedings are still pending. A person in the throes of a divorce should also execute a Power of Attorney giving someone other than the spouse the right to make financial decisions on his/her behalf in the event of incapacity.

Aside from the impact on inheritance rights, marital status is also relevant to life and death decisions. Assume a person has a serious accident or life threatening medical condition and is unable to speak for him or herself medically. If the person is married, unless he or she has an Advanced Health Care Directive or some other written instructions designating someone else to speak for him or her in the event of incapacity, the estranged spouse could become the “shot caller” for all medical decisions and possibly even funeral decisions. Thus, in addition to the will, I also recommend that a person facing the end of a marriage execute an Advance Health Care Directive naming someone other than the spouse as agent to make health care decisions. © 2014 by Marlene S. Cooper. All rights reserved.