TO MARRY OR NOT TO MARRY (AGAIN) –

THAT IS THE QUESTION

This article is not about romance. Rather, it covers basic information on the legal issues involved in marriage that are too often ignored when you focus on romance or emotional security.  A twenty-something couple contemplating a first marriage can afford to eventually learn about these matters.  If you are the parent or grandparent of a twenty-something, you must consider the legal issues of marriage before getting married again. However, if you have already taken that second or third plunge,  pay attention. You and your spouse can still make a plan to protect each other and your respective children.

Marriage is a legal contract!  When you enter into that contract, you assume legal responsibilities toward your spouse, and you acquire legal rights from your spouse.  All comments in this article pertain to Florida law and Florida residents.

What rights and responsibilities are created when you get married?

1.                  Elective share.     When you die, your spouse is entitled to 30 percent of your “Elective Estate.”  Your Elective Estate not only includes property in your name alone, but it also includes most assets with beneficiary designations such as bank accounts, securities, IRA accounts, your interest in jointly held property, annuities, certain interests in trusts, the cash value of life insurance,  and even property that you might transfer to a child during the one-year period  preceding your death.  In other words, you cannot easily ignore your spouse’s rights to his or her elective share of your estate.  Clients ask me how the surviving spouse will be able to claim his or her share if the assets are left in trust for a child. The answer is that the surviving spouse can open a probate proceeding and force the child to return the assets in a sufficient amount to satisfy the elective share.

2.                  Pretermitted Spouse.       Let us assume that you made a will some years ago leaving your entire estate to your children.  Then you marry and fail to make a new will. You assume that your entire estate will be distributed to your children.  In reality, your spouse will be entitled to the share of your probate estate (one-half) that he or she would have received had you died without a will.  He or she is considered a “pretermitted spouse” (i.e., omitted from your pre-marriage will).  The law assumes that you would have provided for your spouse if you had made a will after marriage.  Your probate estate consists of property in your name alone. So, it is hard to say whether the pretermitted share would be greater or less than the elective share. However, your spouse will claim the greater of the two.

3.                  Exempt Property and Allowances.    When you die, your spouse is also entitled to household furniture, furnishings and appliances at your residence of up to $10,000, as well as any automobiles held in your name and used by the immediate family, your interest in any Florida Prepaid College Program contracts (possibly taken out for your grandchildren?), as well as certain death benefits available to the spouses of teachers and school administrators. In addition, your spouse may be eligible for a family allowance of up to $18,000.

4.                  Homestead.  Special provisions are included in the Florida Constitution so that spouses will not be left without a home.  This is the same part of our constitution that prevents creditors from taking away your homestead, i.e. your primary residence. The homestead laws restrict your control of your primary residence when you are married:

• You cannot sell your homestead unless your spouse agrees to sign the deed.
• You cannot take out a loan unless your spouse signs the mortgage.
• When you die, your spouse will have the right to live in the homestead for the rest of his or her life, even if your will says that the property goes to your children.  
• Based upon a 2012 legislative change, your spouse may alternatively elect to receive a one-half interest in the homestead (with one-half going to your descendants) instead of taking a life estate.  If your spouse makes that election, either the spouse or the children can force the sale of the property.
• Your spouse’s rights in your homestead are in addition to his or her other marital rights: the elective share, inheritance as a pretermitted spouse,  exempt property, and the family allowance. 

5.                  Medicaid.             Case law indicates that neither you nor your spouse is personally responsible for the other’s medical bills (unless, of course, you guarantee his or her account). However, if either you or your spouse should need nursing home care, the Department of Children and Families will count all of your assets in determining whether you meet the financial eligibility criteria for Medicaid. Although this is not technically a question of marital rights and responsibilities, you should be aware of the consequences. 

Consider the case of a couple that I helped last year.  They were in their eighties and had been married for 15 years. She had nominal assets (under $2000) and needed nursing home care costing around $8,000 per month. He was wealthy but refused to pay for her care. She was not eligible for Medicaid because his assets were counted as hers.  Was there anything that she could do?  Yes, there were answers, none of which were satisfactory to both parties, and they go beyond the scope of this article. Nevertheless, planning would have avoided their dilemma.

Whether you are thinking about getting married or have already remarried without reconsidering your estate plan, there are techniques available to plan your estate and your spouse’s estate so that they will be distributed as you intend, and so that you can avoid the Medicaid predicament described above.

This type of planning is very tricky, and attorneys involved in this area must consider numerous legal, financial, and personal factors, including the parties’ ages, health, previous marriages (and obligations from those marriages), children, the nature and extent of their respective assets and how the titles are held.

For additional information or to schedule an appointment, call Boynton Beach Florida Elder Law & Estate Planning Attorney Martin H. Cohen at 561-880-8223.