How Your Decision To Remarry Impacts your Wills and Trusts
This article answers the question, “How does your decision to remarry impact your wills and trusts?” A longtime client recently asked me if they should consider getting remarried. My answer must depend on their answers to additional questions that I must ask as a legal specialist in estate planning trust and probate law. This year marks my 20th year as a zealous advocate providing legal services for clients who find themselves in need of legal guidance. My expert opinion can only result in the unwavering conclusion that the decision to remarry does have a significant impact on wills and trusts. My advice to you can be ignored but then your estate planning may fail to achieve one of its primary objectives which is to avoid the legal cost and delays of both the conservatorship court process following your incapacity and the probate court process following your untimely death. For twenty years clients have come to me because they want to protect and provide for their beneficiaries. This goal can only be achieved if clients are willing to make difficult decisions and put them in writing with signed legal documents which complete a legal and binding estate plan.
If you are asking me my personal opinion about marriage, then I have to answer truthfully that I am a proponent of marriage. Not only because my husband and I are celebrating our 25th wedding anniversary this year but because I believe in God. Christians believe marriage is intended by God to be a thriving, lifelong relationship between a man and a woman enduring through trials, sickness, financial crises and emotional stresses. If you also have faith in God then my answer to you must be: “Yes, you should remarry.”
If you are asking my legal opinion about marriage, then you must consider the following advantages and disadvantages of your decision to remarry and consider: (1) whether you want to legally change your name; and (2) how to protect yourself from being liable for your new spouse’s debts; and (3) whether you want your new spouse to inherit from your estate.
If you are deciding to remarry then you must also decide whether you want to legally change your name. A legal name change does result in you having to retitle all of your assets using your new legal name which is a hassle but worth the effort from a legal perspective. What if you don’t file a legal name change and you choose instead to just start using your new spouse’s name by adding a hyphen? In my opinion, this will cause a lot of unnecessary confusion upon your incapacity and/or death for legal and financial documents so the best approach is to legally change your name if you want to commence using your new spouse’s name.
If you are deciding to remarry then you must also decide whether you want to be liable for your new spouse’s debts. You may have heard about prenuptial agreements or premarital agreements and quickly dismissed the idea because you do not consider yourself “rich.” In California, you do not have to be “rich” to be a candidate for a prenuptial agreement. Consider whether you or your future spouse own real estate. Consider whether you or your future spouse own bank accounts, investment accounts, retirement accounts, and insurance policies. Consider whether you or your future spouse own an interest in a business. Consider whether you or your future spouse have incurred debt. Consider whether you or your future spouse own personal property items. All these considerations may result in you needing a prenuptial agreement or at a minimum an updated estate plan. My advice to you is to “put in writing” your current plan now. Then update your estate plan again once you are officially married. There are simple steps you can take to protect both your estate and your soon to be future spouse who will not be protected by California law if you die before the wedding date.
If you are deciding to remarry then you must also decide whether you want your new spouse to inherit from your estate. In California, there is no such thing as getting married and then leaving everything “As Is.” You do have the ability to leave everything “As Is.” However, you must update your will and trust with your new marital status. If you do not, California law will protect your new spouse with what legally is referred to as the “putative spouse doctrine.” This should not be surprising, because California law assumes that you meant to include your new spouse by distributing to them one-half of the community property also referred to as joint property and one-third or one-half of your separate property depending on your legal descendants.
By Attorney Gwendolyn K. Christeson, Certified Specialist Estate Planning Trust and Probate Law, The State Bar of California
