By LAWRENCE S. JACOBS
In the eight months since the fall of the Defense of Marriage Act, I have witnessed a huge rush to marriage among friends, clients and our community at large. Many of those people dramatically underestimate the changes that marriage might bring to their lives, while at the same time being lulled into a false sense of security that marriage will solve every potential legal issue that comes along. Of course, it won’t.
Hundreds and hundreds of benefits accrue to married couples. Yet, many of those benefits are misunderstood and do not come automatically. For example, the right to own real estate as a married couple does not and cannot happen unless the deed to that property includes that right. Many of my clients own their homes as joint with right of survivorship. But married couples can hold real estate as tenants by the entirety, which is much better. Far too many of my clients live in a home that is only owned by one of them. If something happens to that homeowner, the other one may be literally out on the street. Not surprisingly, we re-deed many of our clients’ homes, which is neither difficult nor expensive. Where the transfer of title may be impractical or undesirable, we create Revocable Trusts for the purpose of owning real estate.
Wills are another area where marriage has unexpected impacts. In most states, if you die without a Will and you are married and that marriage is recognized, your spouse will inherit a share of your estate. The amount of that share varies and can be as low as one-third. A properly drafted and signed Will can override those rules. For couples with children, the default rules can be even more problematic because minors cannot inherit money directly, either under a Will or because they were named as the beneficiary of a life insurance or retirement account. Worse yet, no matter how much money you leave, they will likely get it all in a single payment on their 18th birthday. Wills can and frequently do establish distribution schemes that make much more sense.
Marriage only solves problems for couples when both of them are healthy and alive. If either of those should become untrue, then the marriage may count for little or nothing. If your spouse becomes incapacitated, you may have medical decision-making rights, but not the right to manage their separate assets. That is usually accomplished by general durable power of attorney. Otherwise a guardianship petition will be required, which are typically expensive and time-consuming. If your spouse dies before you, and you die later without a will, your assets will all be distributed to certain family members with parents typically first in line, regardless of whether that makes sense.
Marriage equality also brings with it the trials and tribulations that our straight counterparts have endured for generations. If you break up in the future, the only way to end that legal relationship is through a divorce. While you are still married, you cannot change your Will to completely disinherit your spouse. If you get divorced, the court will determine how to divide your assets. The court may also order you to pay alimony to your former spouse. However, all of these potentially adverse outcomes can be changed in a properly drafted prenuptial (and sometimes post-nuptial) agreement. A word of caution: do not call a lawyer the week before your marriage for a pre-nup. I typically advise my clients to allow six to eight weeks.
None of this is intended to discourage anyone from getting married. I am a firm believer in that institution and took the plunge myself in 2009. Rather, I view my job as educating people on the issues, so that they can then make good decisions.
Larry Jacobs has helped hundreds of same-sex couples in the Washington area protect their assets and loved ones through partnership planning. He is a partner at McMillan Metro, P.C. and has practiced law for 39 years. He is admitted to the bar in Maryland, Virginia and D.C. You can learn more about Larry and his practice at PartnerPlanning.com.