By Nancy Burner, Esq.
There is no such thing as a honeymooner’s will, but maybe there should be. Once the honeymoon is over, the dress put away, and every conceivable photograph posted to social media, it is time to start considering the legal implications of getting married.
There may be a name change, joint bank accounts and IRA beneficiary change forms. Most newly married couples fail to check estate planning off their lists because they consider themselves too young to worry about such things.
The uncertainty of the pandemic has caused almost everyone in the world — no matter what age — to consider their own mortality. A recently married couple needs to ensure that their newly entwined life includes each other in a legal sense, as well as in a practical sense, in that they need to know each other’s preferences under worst case scenarios. Most couples do not need more than a basic estate plan, consisting of Advance Directives and a Last Will and Testament.
Life & Death Decisions
Everyone eighteen years of age or older needs advanced directives: Living Will, Health Care Proxy and Power of Attorney. A Living Will allows someone to specify if they want to be kept alive by artificial means if they are in a vegetative state with no reasonable expectation of recovery. A Health Care Proxy allows a person to choose who will make medical decisions in case that person cannot do so. In New York State, only one agent can act under a health care proxy at a time, which avoids confusion and tearful showdowns. A Power of Attorney is a powerful document that allows the principal to name one or more people to handle a wide range of financial matters in case of incapacity.
Dying Without a Will
If a married person dies without a Will in New York State and has no children, the spouse inherits all the assets. This may not necessarily be what the newlywed couple wants — especially regarding heirlooms, ancestral real estate, or a closely-held business. What about real property that one spouse borrowed money to buy with the oral promise to pay back a parent or sibling? Nobody should ever rely on a spouse’s promise to carry out “informal” instructions after death – this rarely happens and creates family tension.
If married with children, the spouse receives the first $50,000 of assets plus 50% of the remaining assets; the other half goes to any minor or adult children. Since minors cannot receive assets outright, this creates a complicated Surrogates Court scenario. If the children are adults from a previous marriage – this automatic allotment may not be ideal. Remember, the intestacy statute is a default blunt instrument and leaves no room for nuance.
Finally, there are practical considerations to dying with a Will versus without, that affect loved ones and make a painful process worse. A Will can dispense with the need for a bond, ensures family members that they are provided for, and avoids unnecessary delays in transferring wealth.
An experienced estate planning attorney will be able to provide invaluable guidance on related issues as well, such as whether you need life insurance, business succession planning, and the best way to designate beneficiaries on retirement accounts. A couple should also explore the option of establishing a living trust to avoid probate, which is necessary when someone owns income producing property, a small business, or property out of state. Estate planning may not seem very romantic, but discussing life and death issues is the best way to plan for the long life ahead of you!
Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.