Going to the Chapel? Going to get Married?
July 29th, 2016
Ah, weddings. Joy. Bliss. Love. The blending of two hearts.
And two lives. And bank accounts. And assets.
And one of those five reasons discussed earlier to update your estate plan. If you don't update your estate plan before jetting off on the honeymoon, the state of Florida will. These are rules that apply to pretermitted spouses. (Pretermitted means someone who was unintentionally omitted or forgotten, here, your spouse from your estate plan.)
Under Florida statutes, if you marry after you make a will, then you pass away, the law allows your spouse to inherit from you in spite of your will. (This applies to your probate assets. Probate assets are those things that don’t have their own beneficiary designations. Thus, these assets include things like your checking and savings accounts (that are not pay-on-death accounts), your house, your car, your brokerage account and mutual funds (but not things such as life insurance policies or retirement plans).) Sometimes this is straightforward; other times, things become complicated.
If you don’t have any children or grandchildren (or great-grandchildren), your spouse receives everything. Of course, with more and more marriages happening later in life, if you have no children, perhaps you wrote your will to provide for your aging parents. Or maybe you wanted to leave a gift to a sibling or a niece or nephew. And if that is the case, it’s very plausible you still wanted to provide something for those family members. But without updating your will, those plans and gifts will be erased. Your spouse takes everything. Your parents, nothing. Your sister, nothing. Your nieces and nephews or neighbors—nothing.
If you do have children who aren’t also the children of your spouse, then your spouse takes half. The rest goes according to the terms of your will you wrote before you married. Again, maybe this is as you would have wanted it. But also, and especially if this is a second or later marriage, it’s quite likely you both brought assets to the marriage and perhaps wanted more than half to be distributed as you had provided in your will. Consider this especially if you have minor children.
However, these pretermitted spouse provisions will not apply under some circumstances. For example, if you provided for your soon-to-be-spouse in that will before you two married, then that person inherits as you had already directed. A pre- or postnuptial agreement can also change the outcome. Or your new spouse might waive the statutory rights. Finally, your will could also indicate you choose not to make provisions for that soon-to-be-spouse.
As for those nonprobate assets, the rules seem even more complicated. Your 401(k) plan is likely going to go fully to your new spouse, no matter whom you’ve listed on the beneficiary form. Federal law controls this. Your IRA, though, works under state law, and it should pass according to your beneficiary designation form.
If you already have an estate plan in place, bravo to you! But if do, and you’re going to the chapel, and you’re going to get married, find an estate planning attorney and update that plan soon after you say, "I do." You probably know better what you want than the fine folks in Tallahassee who write our laws do.