If you die while married, you might naturally assume that everything will simply go to your spouse and children without any complications. However, this assumption only holds true if you do not have a will, which is a situation known as dying intestate. In this unfortunate scenario, the laws governing inheritance vary by state, but typically, your spouse is entitled to receive a portion of your assets, while the remaining part is allocated to your children or, in some cases, to your parents, depending on your unique family circumstances. The exact amount that your spouse inherits can significantly vary based on the specific laws of the state in which you reside. While this process seems straightforward—your spouse and children collectively receiving their rightful inheritance—there are numerous common family situations that can lead to complications, highlighting potential shortfalls within these laws.

Most states operate under the assumption that families are typically comprised of a married couple and their biological children when determining who inherits money and property. However, this assumption fails to account for the reality that many families do not conform to this traditional mold, resulting in a range of legal complications. Research indicates that there are over 50 different family structures present in American households today. Approximately 40% of marriages are remarriages involving at least one spouse, and countless children find themselves in blended families due to adoption or the formation of stepfamilies. Unfortunately, existing laws have not kept pace with these evolving family dynamics, meaning that relying on intestacy laws—the default inheritance laws—can lead to exceedingly strange and undesired outcomes. For instance, stepchildren whom you have raised with love and care but did not formally adopt might receive nothing at all, while an estranged ex-spouse could unexpectedly find themselves entitled to inherit your assets.

EXAMPLE: Carey and Blake each have a child from earlier relationships—Carey has a daughter, Rose, and Blake has a son, Whitley—who live with them full-time. They also have a daughter together named Penny. They treat all three children equally. When Carey passes away without a will or trust, state law decides how to divide her assets. Everything solely owned by Carey is split between Blake, Rose, and Penny. Whitley, despite being treated like family, would receive nothing. This may not reflect Carey’s true wishes.

Without a well-structured estate plan in place, you essentially forfeit control over what happens to your assets and belongings after your passing. Establishing a will or trust empowers you to make crucial decisions regarding the distribution of your money and property, as well as determining who will benefit from your legacy. This proactive approach significantly reduces the potential for conflicts and misunderstandings among your heirs. Conversely, relying solely on state law leaves your loved ones at a disadvantage; they would not automatically inherit your assets. Instead, they are required to file for probate in court, a process that can be not only lengthy and burdensome but also costly and very much a matter of public record. Many individuals prefer to maintain the privacy of their financial matters and family dynamics. Therefore, the most effective strategy to safeguard your affairs and ensure confidentiality is to create and adequately fund a revocable living trust while you still have the capacity to do so.

If both parents of minor children pass away without having a carefully constructed estate plan in place, the children will not automatically be placed in the care of a godparent or grandparent. Instead, a court will make the determination regarding who becomes their guardian, taking into account the best interests of the children while adhering to applicable state laws. This means that the court might choose a guardian who is not the individual you would have preferred or deemed most suitable. However, having a valid will allows you to clearly specify your choice for a guardian, ensuring your wishes are honored and providing peace of mind during a challenging time.

If you and your spouse are currently separated, it is important to understand that state law will dictate what occurs with your financial assets and property when you pass away. In various states, your separation may not legally alter your marital status, which implies that you could still be treated as if you are married under the law. Most state laws indeed entitle spouses to a share of your property if you die without possessing a valid will, meaning that your estranged spouse could potentially receive some or even all of your hard-earned assets. Furthermore, certain state laws or existing court orders may prevent you from excluding your spouse from your will after initiating divorce proceedings, unless you have a legally binding prenuptial or postnuptial agreement in place. Without such an agreement, even if you attempt to leave your spouse out of your will or trust, state law could still mandate that they are entitled to a portion of your estate. This underscores the necessity for proper estate planning in the event of separation or divorce.

If you find yourself in the situation of being separated and are in the process of getting a divorce, it is essential to discuss your various options with both your divorce lawyer and a knowledgeable estate planning attorney. To effectively protect and ensure the proper distribution of your hard-earned assets, it is highly advisable to consult with a qualified estate planning attorney who understands the complexities of these matters. Safeguard yourself, your family members, and all of your valuable belongings by reaching out to us today for expert guidance and personalized support.

—Alfano Law Firm