This is the third in a series of seven articles to help you understand what you do know, don’t know and should know about estate planning.
The myth that marriage wipes out the need for wills and powers of attorney is the one that I hear the most often. And I cringe every time because it is patently false. My standard retort is, “So you think married opposite-sex couples have been signing wills for centuries and powers of attorney for decades just for the fun of it?” Of course marriage brings many rights and protections, but there are three big holes in this thinking.
1. You need a will because if one of you dies, the other may not inherit everything. The state in which you live (or the District) has laws to ensure that a surviving spouse will inherit something, but there are a variety of circumstances in which that amount can be less than 100 percent if there isn’t a will. Does your spouse have children? Are your spouse’s parents still alive? If the answer is yes to either question, you will not inherit 100 percent of your deceased spouse’s assets. In Virginia, the surviving spouse may only receive one-third of the assets if there are children from a prior relationship. And while we’re talking about children, it’s also important to understand that minors cannot inherit anything directly. If money is left to them when they are under 18, a court-appointed guardian will be required to take control of those assets. Then, regardless of how much money may be involved, the children will get it all on the day they turn 18. Of course, a properly drafted will can prevent these problems.
2. Although this is difficult to think about, being married only provides protections if your spouse is alive at the time you die. If he or she is not, and you die without a will, the fact that you were previously married becomes irrelevant. You will be treated as though you were single. In that event, various family members will inherit all of your assets, whether you are close to them or estranged, whether they need those assets or not, and regardless of whether you had other plans. I’ve seen situations in which couples spent a lifetime accumulating valuable artwork and antiques along with significant amounts of money all of which went to distant relatives, rather than to the persons or organizations that the couple actually cared about.
3. All couples need powers of attorney, married or not. Sure, even if you don’t have a medical power of attorney, your spouse will be able to make medical decisions for you. But what if they can’t? A good medical power of attorney will grant the same rights to other trusted people if your spouse cannot take care of you. What’s more, if you become incapacitated, there will be hundreds of other necessary decisions that have nothing to do with medical care. That’s where a financial power of attorney comes in. For instance, nobody gets the right to access your solely owned assets automatically, even a spouse. Who will pay the bills, manage your money, take care of your home, and take care of your spouse? This power of attorney grants important, broad rights to your spouse and perhaps other people that you trust to manage all of your assets when you cannot.
So remember: a marriage certificate is not a free pass. You still need well-constructed wills and powers of attorney to make sure things work just the way you want them to.
(This column is not intended to provide legal advice, but only general guidance that may or may not be applicable to your specific situation.)
Larry Jacobs has helped hundreds of same-sex couples and LGBT singles 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 41 years. Learn more about his practice at PartnerPlanning.com.