Many focus on the romance when they decide to get married (or the wedding planning if you happen to be one of those brides!) and don’t stop in the whirlwind of tying the knot to consider the legal consequences of saying “I do”.
People usually understand the basics – you can legally change your name, there is a legal framework of sharing property and assets that comes with marriage and financial support obligations to your spouse, and as with anything, there can also be tax implications. But many do not understand that marriage can have some significant consequences for estate planning too.
Do you know that marriage can invalidate your will?
Many of my clients are going to read this article and think that I am writing specifically about them because it comes up so often. If you made a will before you got married, and that will was not made in anticipation of marriage, then the will is revoked as soon as you say “I do”. I cannot even contemplate how many people go on their overseas honeymoon without knowing their will is no longer effective!
I have dealt with many unfortunate cases of terminal illness over the years where de facto partners of many years have decided get married before the worst occurs, possibly thinking that they are going to make things easier for their surviving partner, but they end up invalidating their will making dealing with the estate a lot more difficult for their spouse.
The impact of marriage on estate planning is particularly important where the marriage is going to create a blended family situation. Unfortunately, there have been cases where one partners will provides for children from a former relationship, that person subsequently got married invalidating that will, the spouse is then legally first in line for a significant share of the estate under the legislation that applies when a person passes away without a valid will. Depending on the value of the estate, children could unintentionally be excluded all together. It is really important if you wish to share your estate between your new partner, and children from a former relationship, that a valid will is in place after the marriage setting out your wishes for the division of assets, and that it is legally effective based on how you own those assets. Once an asset becomes someone else’s property, it is then distributed according to their will which can be updated at any time, including after the death of a spouse. This could again mean that children from a previous relationship are excluded by a later will of a surviving spouse. Effective estate planning is essential in these situations to ensure that both new spouses and children from previous relationships are provided for if that is your intention.
So, if you are one of the people reading this article who has just found out that your will may no longer be valid – time to book an appointment to do a new will!
KC Hilton, WNB Legal