Change in Marital Status? Time to Create a Will

Epic Will Team Oct 14, 2021

Forming relationships and having companionship is one of the most important aspects of life. Whether you’re single and have a strong group of friends to lean on or married and have your spouse champion you and navigate the hard days together; as humans, we were made to be in a relationship. 

The relationships we build present many enjoyable moments, but can also present many challenges. Relationships require work and aren't always easy, but they are extremely valuable to us and worth the effort. When you have people you care about—family, friends that are basically siblings, etc.—you want them to be protected and cared for, and one way to do that is by writing a Will.

A Will ensures that you are in control of what happens to your loved ones and assets, no matter the situation. Life can be tough and unpredictable, so let's walk through some partnership scenarios to better understand how each impacts the couple’s estate.

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Meet Brooke, a 25-year-old female with a dog named Max. She started her own floral shop business and recently purchased a home of her own.

Brooke, young and healthy, may be thinking, “I’m young and single, do I really need to create a Will?”— YES! Oh my gosh, yes. Since there isn't something like a marriage that automatically and legally determines a beneficiary for Brooke, creating a Will now as an independent is more critical. A Will allows her to decide who will get her house, her floral shop business, or who will take care of Max if something happens to her. While Brooke may have an idea of who she wants to receive these assets if something were to happen to her, a Will makes it legally binding, so her wishes are carried out.

Aside from her assets, a Will allows Brooke to legally appoint a Health Care and Financial Power of Attorney to speak on her behalf and carry out her medical and financial wishes in the case she can’t speak for herself (in a coma).

A Will provides Brooke the peace of mind that she can make responsible financial decisions as a business and homeowner and even designate someone to carry out her medical wishes and take care of Max in case something unexpected happens.

Marriage

Fast forward a couple of years—Brooke meets James, and they get married! While they’re definitely thinking about their futures together, creating a Will is probably the last thing on their minds. I mean, the death of a loved one isn’t exactly great honeymoon talk. However, James and Brooke need to be prepared and have discussions about these major life decisions now that two people are involved.

In most cases, being married means your spouse can claim everything, even if you don’t have a Will. However, making a Will with your spouse is still beneficial as you can be more specific with your wishes. Make a plan to sit down with your spouse to set expectations, make a list of assets, and create your Wills together to avoid contradictory statements in your Wills.

Married couples often create “mirror Wills,” where most of the estate goes to the other spouse, and they “mirror” other choices made in their Wills. However, they do still have the opportunity to include friends or family members in their Will too. For example, if James and Brooke can have a child, they could also leave behind jewelry or money for college to their child in their Will. 

Remember, If you were single before and already had a Will, getting married drastically changes a previous Will’s control over the distribution of your assets from when you were single, so you’ll need to revisit your Will after marriage.

Separation

If you are separating from your spouse, you obviously have many tough decisions to make.  You're going to have to think through any previously written Will and consider your previous choices and whether you still want to be bound to those.

Separation is tricky when it comes to Wills. Since separation is not legally recognized without formal documentation, it doesn’t always have a huge impact on a legally binding Will. With that being said, if you’re separating with the intent to divorce, you should take action and be prepared. 

Revocating your spouse's beneficiary status isn't enough and in some states may not be possible. You'll want to create a separation agreement that clearly outlines what will happen upon the death of one spouse. 

In the case of James and Brooke, let’s say they begin to have some issues and decide to separate. Now, if James were to pass before the separation agreements are finalized, Brooke can still make claims to the estate due to spousal rights and having a Will that is still legally binding.

Divorce

Similar to separation, divorce can be tricky since there are often many unanticipated events involved that may require some legal assistance from an attorney. However, what’s pretty cut and dry is the termination of marriage invalidates the old Will in most states and revokes any gifts to a former spouse.

Let's say James and Brooke quickly fell out of their honeymoon phase and began the process of a nasty divorce. Brooke likely doesn’t want her floral business, something she worked incredibly hard to build, passed down to James since she no longer has a good relationship with him.

Whether the divorce is amicable or not, you should plan to create a Will to protect your assets and determine your new beneficiaries or create a new Will since the one with your ex-spouse as a beneficiary may no longer be desirable.

Think about all your hard-earned money, your treasured possessions, and any children or fur babies you have—you’ll want a Will to make sure these assets end up in the right hands if something were to happen to you.

Widowed

This one is hard. The death of a loved one is already challenging enough, and thinking about a Will is probably the last thing on your mind at this time. Unfortunately, it’s more important than ever in this situation to create a Will and start protecting your future if something were to ever happen to you.

In the event of the death of a spouse with no children, the surviving spouse automatically receives full ownership of the jointly held property. In most states, widows are given priority as personal representatives. In some cases, heirs or family members may petition the court to serve as personal representatives; however, the court usually identifies the widow as the representative.


As James' wife, Brooke would automatically inherit James' estate in the event of something unexpected happening to him while the couple was still married. However, Brooke will now want to create a Will if she hasn’t already or update her Will to appoint a beneficiary at her subsequent death.

 

Both Brooke and James will benefit from the creation of a Will since it is uncertain who will unexpectedly die first. This ensures that regardless of what happens, they are still in complete control of their assets. 

Common-law Marriages 

Common-law marriages are informal marriages where a couple lives together and represents themselves as a

married couple but did not obtain a marriage license or solemnize their marriages. Common-law marriages are only allowed in various states, but if you live in one of these states, your common-law spouse will automatically acquire your possessions when you pass if a Will is not in place.

If Brooke and James decided not to formally marry but met the requirements of a common-law marriage while residing in one of the states where they are recognized, they will need a Will, a Financial Power of Attorney, and a Healthcare Directive/Power of Attorney in place to ensure there isn't confusion in the case of death, a medical emergency or in the event either one of them is incapacitated. If they do not have a Financial Power of Attorney and a Healthcare Directive/Power of Attorney in place, it might be difficult for Brooke or James to get the recognition they needed to act as a spouse to make critical health care and financial decisions.  If they do not have a Will in place, they may have to fight to acquire their partner's property.

Creating a Will, financial power of attorney, and healthcare directive/power of attorney that clearly outlines all of their emergency and end-of-life wishes will help Brooke and James, their family, and their assets.

Domestic Partnership or Civil Union

A domestic partnership is a legal relationship between two individuals who live together and share a common domestic life but are not married. Some states only recognize this type of relationship, but the partner usually inherits the property, similar to a married couple.

In the event of your partner's death without a Will, you will be entitled to the same share that a surviving spouse would be. While domestic partnerships are becoming more common, if a partner dies without a Will, the distribution of the assets can get messy legally since there are no marital rights. 

Similar to common-law marriage, if Brooke and James decided that a domestic partnership is the best fit for their relationship, they need to be living in a state that recognizes a domestic partnership to receive the benefits of such laws. 

Key takeaways

Life is unpredictable, so in the case that your marital status changes, so should your Will. While it may seem like an unimportant task during such a life-changing moment, ensuring that you, your family, and your assets are taken care of should be one of your top priorities during this time. Whether you’re gaining a new life partner or separating from one, complicated laws make it critical for you to have a Will in place. 

No matter your marital status, we understand how important it is for you to secure your future and your family’s. Be prepared for the unexpected and live every day freely and with purpose knowing that everyone and everything you love most is accounted for. 

Get started with Epic Will today

Here at Epic Will, we’ve thought of everything so you don’t have to. We’ve created a quick and simple way to start preparing your Will online in as little as 5 minutes so you can protect your family, leave your legacy, and live with confidence knowing your final wishes are documented and legally binding.

Interested in learning more about the different life events that warrant a Will? 

Check out our blog on the Top 7 Life Events that Cause People to Create a Will.

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