Florida Elder Law & Estate Planning Blog
Newlyweds, tend to these important plans
May 31, 2016
At this time of year, thousands of eager couples, young and perhaps not-so-young, are busy with preparations for a June wedding. Guest lists, flowers and bridesmaids’ dresses take center stage right now. But after the honeymoon, newly married couples should attend to something definitely not as glamorous, but definitely important: a basic estate plan. If you and your spouse have already discussed your budget and your finances, that’s wonderful – but there’s more to be done!
Hopefully your life together will be a healthy, happy, and long one – but let’s face it, sometimes life has other ideas for us. For your financial and legal health, and most importantly for your peace of mind, you should address the following issues without delay:
You’d be surprised at how many people fail to update their beneficiary designations when they marry. (This happened in my own family, when a relative found out her deceased husband’s ex-wife had not been removed as the beneficiary of his life insurance policy.) Examine your retirement accounts, insurance policies, annuities, bank accounts, brokerage accounts. Also consider naming a contingent beneficiary, in case your spouse predeceases you.
Titling of assets
Do you already own property with your spouse? There are three legal forms of titling when spouses co-own an asset: tenants in common, joint tenants with rights of survivorship, and tenants by the entirety. Consider ownership as tenants by the entirety, which is available only to married couples and can provide additional credit protection not afforded by the other forms of ownership.
Last Will & Testament
Your marriage has brought a new spouse into your life, and perhaps, new real property or other assets. A will allows you to name who you want to get your assets when you pass away. If you or your spouse do not already have wills, you should create them. If you have existing wills, have them reviewed. The law makes provisions for a “pretermitted spouse,” i.e., a spouse who became your spouse after you wrote your will. The pretermitted spouse is legally entitled to 50% of your probatable assets. In addition, regardless of whether you change your will, your spouse has certain legal rights to your homestead property and elective share rights against your estate, including all non-probatable assets, unless you have a pre- or post-nuptial agreement that states otherwise. Bottom line, see a qualified elder law/estate planning attorney to get your ducks in a row.
Durable Power of Attorney
Do not assume that your spouse automatically has the legal authority to handle your financial affairs if you are incapacitated. Each of you should establish a durable power of attorney that explicitly names the other (or some other responsible person) to handle your financial affairs if you are not able to do so. Once you have established your durable power of attorney, submit it to each of your financial institutions to be sure the institution will honor it.
Health Care Surrogate
Under Florida law, if you are no longer able to make your own wishes for medical care known, your spouse (after a court-appointed guardian, if there is one), gets priority as your health care decision maker. It is necessary to execute a health care surrogate naming your spouse as your health care agent. That assumes, of course, that you want your spouse to have that authority. If you want someone else to act as your health care agent – for example, a sibling – your health care surrogate must explicitly reflect that desire. Naming a contingent agent is also wise, if your first choice is unable to serve for any reason.
Children from a prior marriage?
If you have a child from a prior marriage, who will be the child’s legal guardian if you pass away or are incapacitated, particularly if the child’s other parent is no longer in the picture? Who will handle the child’s money? These are important issues to be discussed with your attorney without delay.
Changed your name?
Let your financial institutions know about your name change. Change your name on other documents, such as your passport and drivers license. Discrepancies between your new legal name and existing documents may seem like a minor issue, but can mushroom into a major inconvenience and bureaucratic nightmare. (Try getting through airport security when your drivers license says Mary Smith and your boarding pass says Mary Jones!)
In summary: Enjoy your honeymoon – then make an appointment to see a certified and experienced elder law or estate planning attorney to get your plans underway. And keep the attorney’s number on hand. As your married life evolves – perhaps with children, a new home, new assets – your estate plan will have to keep up. Congratulations!