How Your Marital Status Impacts Your Wills and Trusts

This article answers the question, “How does your marital status impact your wills and trusts?”

Are you getting married? Or are you newly married? Are you getting a divorce? Or are you

newly divorced? Has your spouse predeceased you? These are questions that I ask as a legal

specialist in estate planning trust and probate law. This year marks my 19 th year as a zealous

advocate providing legal services for clients who find themselves in need of legal guidance. 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 cost and delays of both the conservatorship court process

following your incapacity and the probate court process following your untimely death. Most of

my clients come to me because they want to make sure that their beneficiaries are provided for

and protected. My job is also to ensure that you are protected during your lifetime because you

have made difficult decisions and put them in writing.

Are you newly engaged? It is never too early to consider how your soon to be marital status will

affect your wills and trusts. 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. This pertinent legal advice

comes from my 19 years in practice and litigating these issues over the years. 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.

Are you newly married? It is imperative to consider how your new marital status affects your

wills and trusts. My estate planning clients know that they have access to my office at any time

to obtain copies of their documents or to update their file with a change in circumstances.

Usually, the phone call is to notify me that they have moved or purchased a new property which

needs to be added to their trust to avoid the probate court process. My clients also notify me

when there has been a change in circumstance as a result of a change in family relations: a

marriage of a single person, a divorce, a death of a spouse.

If there is a marriage of a single person, I then must review the estate plan immediately. Has

there been a legal name change? I must also ask, “Has the client’s objectives changed?” 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. It makes more sense in the

example of children. If you have one child when you sign your will and/or trust and then fail to

sign an updated document when you add any additional children by birth or adoption, you can be

comforted by the fact that California law will provide for that additional child, and they will be

included in any estate or trust distribution.

Are you divorced? If there is a divorce, then the estate plan must be reviewed immediately.

Upon divorce, California law does protect you by revoking your former spouse’s name as a

nominee and as a beneficiary under your will and/or trust. However, the divorce does not

automatically remove your former spouse from any of your pay on death designations, retirement

accounts and life insurance is the most common example. Also the joint trust is revoked so now

you must create a new single trust for the assets you leave the marriage with so that you can still

avoid the probate court process if you own real estate or if your financial accounts exceed

$100,000.

Are you a widow? Has your spouse predeceased you? In California, we refer to you as the

Surviving Spouse and you are protected under California Probate Code §6401 when no will or

Trust is found upon your spouse’s death, or you did not update your marital status on your

existing documents. This code section reveals why I always emphasize that you must make

difficult decisions and put them in writing. When assisting clients in making decisions about

their estate plan, I counsel my married clients that California law allows them to each give away

their separate property and their one-half of their community property also referred to as joint

property. As set forth above, if you fail to update your marital status, then your surviving spouse

will inherit your one-half of your joint property and one-third or one-half of your separate

property depending on your legal descendants at the time of your death. Sometimes the result is

that the deceased spouse’s separate property that was supposed to go to just their children, is now

being shared. Which may not be what the deceased spouse had intended.

Are you a blended family? A blended family is the politically correct term for anyone entering a

marriage with his or her children and/or his and her property. One litigation case that illustrates

the need to review and update documents was when my 82-year-old client was served an

eviction notice 5 days after his wife’s death. She had a trust which held her separate property, a

home he lived in and a home he had paid the mortgage on, but it wasn’t enough to protect him.

The house was in Trust for his stepchildren, his spouse had failed to provide for him. His spouse

did not have to “gift” him the residence. She could have updated her documents to allow him the

right to live there following her death for a specified amount of time. It is referred to as a “life

estate” in the residence. It allows the surviving spouse or significant other the opportunity to

continue to reside in the residence so long as all expenses are paid. They do not “own” the

property, but they have a right to live there for their lifetime or for any period of time. It can be

as little as 30 days. This right can be granted to a surviving spouse, a significant other, and even

a child who resides with the decedent.