Legal Guidance for Newlyweds

Congratulations to you and yours if you have just tied the knot!  Here’s to a lifetime of love and happiness! When a couple decides to get married, it’s a public declaration of their love and commitment to each other.  This article provides legal guidance for newlyweds.  Whether you are planning on getting married or are newly married, you need to know how your marital status impacts your estate planning documents if you live in California.  This article is for you if you have legally married in California, I must warn you that common law marriage does not exist in California.

As a licensed California attorney and a legal specialist in estate planning trust and probate law, I am dedicated to guiding my clients through making decisions for their legacy plans and preparing legal documents for them.

If you live in California, and you are planning on getting legally married, you may consider entering into a prenuptial agreement or post-nuptial agreement.  There are several considerations that may result in you needing a written agreement or at a minimum an updated estate plan even if you don’t consider yourself rich.  You should consider entering into a written agreement if you can answer yes to any of the following questions: 

·         Whether you or your future spouse own real estate. 

·         Whether you or your future spouse own bank accounts, investment accounts, retirement accounts, and insurance policies. 

·         Whether you or your future spouse own an interest in a business. 

·         Whether you or your future spouse have incurred debt. 

·         Whether you or your future spouse own personal property items. 

My advice to you is to “put in writing” your current estate plan now even before the wedding date.  Then update your estate plan again once you are officially married.  This helpful legal advice comes from my 21 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, or you die after the wedding date but before you have a chance to put your wishes in writing.

If you are newly married or you have gotten married since you signed your estate planning documents, then I have some legal guidance for you.  Your new marital status does influence 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 because of a change in family relations: a marriage of a single person, a divorce, a death of a spouse.

Once a single person marries, I must review and update their former estate plan immediately.  If there has been a legal name change then all documents should be resigned with the new married name.  In California, there is no such thing as getting married and then leaving everything “As Is.”  You may want to add your new spouse as the person in charge of health care decisions if you become incapacitated.  You also may want to add your new spouse as the person in charge of financial decisions upon your incapacity or your death.  Even if you choose not to add your spouse as a beneficiary under your will or trust, 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 and one-third or one-half of your separate property depending on how many legal descendants you have. 

If you have obtained a divorce since you signed your legal documents, I recommend that you have your documents updated 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 decree does not automatically remove your former spouse from any of your pay on death or beneficiary designations. I recommend you talk to your financial advisers and update your beneficiary designations for your retirement accounts and life insurance policies. 

Following a divorce, the joint trust you had with your former spouse is revoked so you need a new will or trust depending on what assets you have.  A trust is recommended if you own real estate or if your financial accounts exceed $100,000.

Are you a widow?  Has your spouse predeceased you?  In California, you are the surviving spouse and you are protected under California Probate law when no will or Trust is found upon your spouse’s death, or you did not update your marital status on your existing documents. 

Legacy planning requires you to make difficult decisions and have them put in writing so that your wishes are known upon your death.  I advise my married clients that California law allows them to each give away their separate property and their one-half of their community property.  I hope this article has reminded you to update your estate plan depending on your marital status.