Who can you trust? Deb hears this question over and over again in her professional practice as an elder law attorney and a fee-only, holistic financial planner. Let Deb teach you how to protect yourself and your assets from those who might not have your best interests at heart. [Editor's note: Deb no longer contributes to Silver Planet, but we have made her archived blog entries available as a service to our readers.]
Most spouses do own everything together, 50/50. But the real question is, how? Are they joint tenants with right of survivorship, or tenants in common? (See Misconception #1.)
If they’re joint tenants, then the property passes automatically to the surviving spouse, with no need for a probate. If they’re tenants in common, the property of the first spouse to die will pass to others according to that person’s will. If no will can be found, the property passes to others per state law, the subject for next week’s blog.
What happens if both spouses die together in an accident? Again, if there is no will, state law takes over. The law attempts to mirror what many folks do, in fact, wish in these circumstances, such as giving the property to the children in equal shares. But this presumption may not be what you desire. You might have minor children, irresponsible children, or children with special medical needs who receive government benefits. They will need special protective provisions in a will or trust to enhance their lives.
Finally, if you have children from a previous relationship, you may not want to rely on your spouse’s good intentions after you’re gone. His own children (or his new wife!) might take precedence over your children someday. This is family discord and litigation waiting to happen. If you want to be sure that your kids get your property, do it now, in a will or a trust.
By Deborah Hoskins, JD, CFP
The Wise and the Wary Blog