Isn’t There Already A Law That Leaves Everything To My Spouse And Kids?
Misconceptions about Automatic Inheritance
Many people think that if they die while they are married, everything they own automatically goes to their spouse or children. They’re actually thinking of state rules that apply if someone dies without leaving a will. In legal jargon, this is referred to as “intestate.” In that case, the specifics will vary depending on each state’s law, so where you live when you die can significantly change the outcome for your family.
However, the general rule is that your spouse will receive a share, and your children will receive the rest. Exactly how much a spouse will inherit depends on the state, though.
DC Spousal Intestacy Rules
For example, in the District of Columbia, if you and your spouse have the same children then your spouse would get two-thirds of your estate. If your children are not also your spouse’s children, then your spouse will get one-half of your estate.
Examples of Intestate Law Failures
Now, it may seem like, “So far, so good.” Your spouse is getting an inheritance, so are the kids. But here are some examples of how the laws can fail many common family situations.
Lack of Guardianship for Minor Children
First off, if both parents of minor-aged children die intestate, then the children lack a legal guardian. Kids don’t automatically go to a godparent, even if that’s what everyone knew the parents had intended. Instead, a court will appoint someone to be the children’s guardian. In such situations, the judge seeks to act in the children’s best interests and gathers information on the parents, the children, and the family circumstances. But the decision is up to the court, and the judge may not make the decision that you, as a parent, would have made.
Challenges with Modern Family Structures
When it comes to asset division, in most cases, state intestacy law presumes that a family consists of a husband, wife, and their natural-born children. But, that’s not necessarily the way many families are structured, and things can become legally complicated quickly. According to Wealth Management, one analysis has 50 different types of family structures in American households. Almost 18% of Americans have been remarried, and–through adoption and stepfamilies–millions of children are living in blended families. The laws just haven’t kept up, and absurd results can occur if you rely on intestacy as your estate plan. Stepchildren that you helped raise (but didn’t legally adopt) may end up with no inheritance, while a soon-to-be-ex-spouse may inherit from you.
What if You and Your Spouse Are Separated?
State law decides what happens to your estate if you are separated from your spouse when you die. Much of the time, the court ignores your separation and just considers you still legally married.
Unless you have a prenuptial or postnuptial agreement, it is extremely difficult to disinherit your spouse. Again, even if a spouse is omitted from a will, state laws might choose to give a surviving husband or wife a share of the assets.
If you are separated from your spouse, and your divorce is pending, you should definitely talk with your divorce lawyer and an estate planning attorney about your options.
Creditors Take Before Your Family
Intestacy provides no asset protection or preservation benefits. Without any protections in place, an estate’s assets are still vulnerable to creditors, lawsuits, and others who may claim entitlement to the property. These claims would take precedence over the statutory requirements for inheritance. In other words, the family may not receive the lion’s share of the estate. They’d get the leftovers.
The best way to safeguard and pass along what you’ve worked so hard to build is to talk to a qualified estate planning attorney. Protect yourself, your family and your assets by contacting us today.