The Married Will
Changing your marital status from single to married has a significant impact on your life in many ways, including how you draft your Last Will and Testament. If you have already written a will as a single individual, you should be aware of the changes that happen after saying "I do."
While you still have some control over your estate and how you wish it to be distributed after your death, some state laws make provisions for the surviving spouse, regardless of what it says in the passing spouse's will. Many states require the spouse to be the beneficiary of certain financial accounts including 401k accounts, pensions, and some IRAs.
Even if you already plan for your spouse to be your primary beneficiary, you should still be aware of how the law sees your estate.
Community Property or Common Law
The specific rights that your spouse may have regarding inheritance and your estate have a lot to do with where you live. Whether you live in a community property or common law state has the most significant effect.
Community Property States
A community property state views both spouses as equal owners of any assets and property gained during the marriage. Assets you acquired before marriage are considered solely yours, but if you open a financial account or purpose any property after getting married, state laws consider your spouse as an equal owner.
Community Property States include:
Common Law States
The other 41 states in the US are common law states. Common law states do not automatically consider assets gained during marriage as being owned by both spouses. One spouse can purchase property solely in their name without including the other.
Most people probably do not consider community property laws outside of marriage or divorce, but these laws are also important to know when working out your estate plan.
Divorce and Your Will
In most states, a divorce legally severs any rights your former spouse had to your estate after your death. Even in community property states, legally dissolving the marriage also removes the spouse's inheritance rights.
If you get divorced, it's still a good idea to update your Last Will & Testament as soon as possible. Depending on the extent of changes you need to make, you may be able to simply add a codicil to change your beneficiary without rewriting the entire document.
Non-Citizen Spouses and Wills
If your spouse is not a US citizen, they can still be your beneficiary and receive assets from your estate. Unfortunately, non-citizens are not exempt from paying the Federal Estate & Gift Tax — a tax applied to inherited assets worth more than $5.45 million. This tax is not applied to gifts between spouses who are both US citizens.
The Joint Will
If you have not yet created a "married will," you and your spouse might consider a joint will as an alternative to two separate documents. There are a few pros and cons to this idea, but it ultimately comes down to your preference.
The biggest joint will con is that the document can quickly become complicated and lengthy. Additionally, the joint Last Will & Testament may not allow each person to properly explain their final instructions and other wishes.
The pro side of a joint will is that it simplifies an already lengthy process, especially if both spouses agree on how the estate should be divided.
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