Marriage has various effects on estate planning in Florida and requires you to consider how you craft your will and other estate planning documents. Most significantly, you are now able to utilize various marriage-related laws from ownership to inheritance. By being aware of these laws, your family can benefit both during your lifetime and after.
We welcome you to contact our Pinellas County Estate Planning Lawyers today for a free assessment.
Let’s take a closer look:
Ways Marriage Affects Your Estate Plan in Pinellas County:
1. Homestead Can Only Go to Your Spouse
Florida law provides plenty of important laws for married couples. Perhaps the biggest of all is how Homestead (your primary residence) is left to someone in your will.
The law is designed to ensure that specific surviving family members retain the home. Florida Statute Section 732.4015 states that you cannot transfer your homestead property to someone else, other than a surviving spouse or minor child.
So, if you had originally stated in your will that you’d like your property to be inherited by your brother, but you have a wife, then the law will not allow the property to go to your brother without certain measures being put in place, such as a spousal waiver in limited circumstances.
However, if you are not survived by a spouse or minor child, then you could leave your home to whoever you wish.
Spouses and minor children are also entitled to inherit ‘exempt property’ in the decedent’s usual place of abode up to a net value of $20,000 including:
- Household furnishings
- Furniture
- Appliances
- and
- Two motor vehicles
- Qualified Tuition Programs
2. You Can Qualify for Tenancy by the Entireties
Florida law also allows different ways for people to jointly own property.
When a married couple has acquired a title to a property together with equal shares of the property, they will qualify to have ownership as ‘Tenants by the Entireties’.
This type of ownership has several benefits, including:
- Creditor protection
- Rights of Survivorship
Rights of Survivorship are particularly notable, as it allows a surviving spouse to own their deceased spouse’s share of the property – without the need to go through the probate process.
Creditor protection is also a valuable aspect of tenants by the entireties (TBE) ownership, as property owned as TBE are protected from the individual creditors of each spouse. Florida is one of the unique states that provides such protection.
This is very appealing to many couples and families in Florida, but requires careful estate planning and ownership planning. Please contact our Florida estate planning lawyers for assistance in this area.
3. You Will Have Rights to an Elective Share
The Elective Share law is a safety net for surviving spouses who have been left a small portion of their deceased spouse’s estate. As a surviving spouse, you have a right to claim your ‘Elective Share’ in this case, to receive 30% of the elective estate (including assets that avoid probate).
This law was created to protect widowed women who were left financially vulnerable after their husband’s death, often due to poor estate planning. Today, the Elective Share law is available to all surviving spouses.
However, a married person can still leave a share of their estate to whomever they wish – it’s just that 30% of the estate will always be subject to claim by their spouse.
4. You Need to Consider Prenuptial Agreements
Note that Prenuptial Agreements can see the right to an Elective Share waived. ‘Prenups’ are written contracts that can be entered by couples before a marriage, to set a blueprint for what should happen if they get divorced or one of them passes away. This can also be agreed upon after marriage after certain disclosures and procedural requirements.
If you have any concerns over your elective share rights, please contact our Pinellas County estate planning lawyers today.
5. What Happens If You Get Divorced?
Perhaps one of the most notable effects marriage can have on your estate planning comes in the potential of divorce. Divorce has a very strong effect on estate planning, especially with Section 732.507(2) stating that a provision of a Last Will and Testament affecting a spouse will become void upon divorce.
For example, imagine Jim names his wife Pam as the sole beneficiary in his will. Jim and Pam get divorced and then Jim later dies. Jim never changed his Last Will and Testament, but Pam will no longer qualify as a beneficiary anyway.
However, things are often more complicated than that and you should always update your estate plan after a divorce – especially if you have children together.
You should also be aware of the importance of changing any Power of Attorney or Medical Proxy rights you have given to your ex-spouse if you are now divorced.
Read Related: Essential Steps for Estate Planning After a Divorce
6. Intestate Succession Laws Now Change
It is also worth understanding the impact of the ‘Intestate Succession’ law, as a married person.
Intestate Succession Laws determine what should happen to someone’s estate, if their Last Will and Testament did not sufficiently cover all aspects of their estate. This applies only to assets subject to intestacy rules
If you pass away without provision in your will (or without a will at all), the probate process will share the assets as per the Intestate Law in the order of the following priority.
- Surviving spouse
- Adult Children
- Close and trusted family members
The assets affected by Florida’s intestate succession laws usually only include those that are named solely by the deceased person, such as:
- Property such as your home and other real estate
- Cars, boats, campers, motorcycles and other vehicles
- Bank and brokerage accounts
- Life insurance policies (if there is no beneficiary named)
- Pets
- Personal property, such as family heirlooms, clothes, books, furniture
- Art and collectibles
Some assets will be unaffected, including:
- Funds in retirement accounts such as IRA and 401(k)s for which a beneficiary(ies) have been designated
- Life insurance proceeds (if a beneficiary(ies) has been designated)
- Payable-on-death bank accounts
- Real estate owned in joint tenancy or tenancy by the entirety.
- Property transferred to a living trust during the life of the creator of the trust
- Securities held in a transfer-on-death account
Additionally, if an asset is owned by spouses, and the surviving spouse passes away, the estate of the last-to-die spouse (including the assets inherited from the first-to-die spouse) will go to the last-to-die spouse’s lineal heirs, or according to their last will and testament, which may not be the overall estate plan objective.
To avoid the stress and avoid the process of Intestate Succession, you should create a well-drafted Last Will and Testament with the assistance of a Pinellas County estate planning lawyer.
7. Consider Medical Directives
Once married, the need for Medical Directives is all the more important. These directives are instructions for how you’d prefer to be treated if you are incapacitated (such as, in a coma, severely injured or mentally incapacitated).
These directives are advised for married couples as it can severely reduce the stress and burden placed on your partner. For example, if you are on life support – at what point should it be turned off? Or, if you have a choice of medication – what medication would you select?
You can also name a health-care proxy, which warrants the selected individual to make healthcare decisions on your behalf. These documents are part of your overall estate plan and should be filled out and signed with the support of an estate planning lawyer.
8. Consider a Power of Attorney
Similarly, you may also want to consider naming your partner as a ‘Power of Attorney’ (POA) now that you’re married.
A POA is authorized to act on your behalf for finances and legal matters. This can be very useful if you’re ever out of the country, sick or unable to take care of taxes, bills, investments or finances.
There are various types of Power of Attorneys, offering various levels of power. Feel free to contact our Pinellas County estate planning lawyers to determine the optimal choice for you and to validate the documents correctly.
9. Update Your Documents
Although it can be inconvenient, marriage can also mean you have a bunch of bureaucratic tasks on your hands. It’s wise to sit down and get all your documentation updated as you’ll need it to be correct in the future to buy real estate, insurance and more.
You should locate and consider updating;
- Armed Forces ID / Discharge Papers
- Birth Certificate
- Citizenship Documentation
- Divorce Decree (from previous marriages)
- Legal guardian or adoption papers
- Marriage Certificate
- Passport
- Prenuptial or Postnuptial Agreement
- Social Security Card, or social security number
It’s also wise to update your digital legacy, so your partner can access and inherit cryptocurrencies, intellectual property, loyalty programs and much more.
10. You Have Asset Protection Opportunities
Another effect marriage has on your estate planning comes through asset protection. Asset protection is the act of structuring your asset ownership to make it very difficult for creditors to claim on them.
As a married couple, you can now consider:
- Individual Name
- Multiple Parties Names: Marriage, Domestic Partnerships, General Partnerships, Joint Ventures
- Entities, including corporations, LLCs and Limited Partnerships
Read Related: Full Guide on asset protection in Florida.
Do You Have Step Children?
The final notable effect marriage has on your estate planning is if you have step-children.
Blended families (where a child was born in a previous relationship) must take steps to avoid inheritance issues.
Stepchildren who are not legally adopted do not automatically inherit part of their step-parent’s estate by law. You must plan for it in your estate plan.
Please contact our Pinellas County estate planning lawyers to help you:
- Update your will
- Update trust or designation documents
- Ensure estate planning documents list stepchildren as ‘stepchildren’ and not ‘children’
- Update your insurance policies
Read Related: How to Include Stepchildren in Your Estate Plan in Florida
Contact a Pinellas County and Hillsborough County Estate Planning Lawyer
If you’re looking to plan an estate after marriage, then our Pinellas County estate planning lawyers can help. We regularly help Floridian couples make water-tight and future-proofed estate plans.
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Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced attorneys, they can help you start and complete the probate process or tackle any probate litigation issues.
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