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Old Pueblo Legal Observer

Love The One You're With: Estate Planning for Non-Traditional Couples

Posted by Elizabeth D. Spilotro | Jun 18, 2015 | 0 Comments

All of us have given some thought to what we want to happen when we die, morbid as it may be. However, 80% of us fail to actually write any of our intentions down on paper. For those who are part of “non-traditional families”, failure to act can have unfortunate and unintended consequences.

The law dictates what happens for those people who don't do their homework. In cases where a person dies leaving no will and a surviving spouse who is also the parent of all his children, Arizona law will gives all property to the surviving spouse, and gives her first priority in serving as personal representative to see that everything gets taken care of properly. The surviving spouse may have to go through a bit of unnecessary hassle to get there, but it will get done.

For those who aren't in that sort of neat and tidy situation—and an increasing number of Americans are not—a person needs to put some thought and effort into planning ahead in order to make sure what he wants to happen at his death actually does.

For example, let's take the case of Mike and Carol Brady, residents of Tucson who are both in a second marriage, each of them with three children from their first marriages. Mike dies without a will. Because Mike did not draft a will, Carol will be left with her half of the community property, and only receive half of Mike's separate property. The other half of Mike's separate property and his entire half of the community property he shared with Carol before his death will pass to his three sons from his first marriage.

This may suit Mike perfectly fine. However, it may be more likely that Mike intended Carol have the benefit of his assets until she herself passed away, with his sons inheriting the remainder at that time. Or Mike may have wished for his son Bobby to take over his architecture practice, which was separate property, and not for Carol to own a partial interest.

Further, let's imagine Mike's sons are minors and Mike was widowed by his first wife. If Mike did not designate Carol as his choice for guardian in the event of his death, there could be a battle in probate court between Carol and Mike's brother over who should be appointed guardian for Mike's kids. The scenarios are endless, but the point is that what Arizona law provides when a person with a blended family dies without a will may not at all reflect what that person really wanted or expected to take place.

Unmarried couples in committed relationships face similar issues. Some same-sex couples who have long been denied marriage have yet to take the plunge; other same-sex or heterosexual couples who were previously married elect not to enter into a formal marriage because remarriage could cause one partner to lose certain marital benefits (such as death benefits, insurance coverage, beneficiary status, and the like). In such cases, if Pat dies without a will, Chris is left out in the rain. Chris has no lineal or marital relationship to Pat, and therefore is not contemplated at all under Arizona intestacy laws. What if Pat owns the house in which they both reside? Pat's heirs at law (family of one degree or another) would get the house, and Chris would lose both a home and a partner. While holding the home and other assets in joint tenancy would ensure Pat's property passes to Chris, what happens after that? Once Chris assumes full ownership of the property, there is no assurance that Pat's children from a previous relationship will ever inherit what is left when Chris dies.

Married or not, individuals in “non-traditional” families need to take extra steps to ensure they provide for those they love in the ways that they wish. The time and expense associated with consulting a professional can eliminate potential future conflict and provide peace of mind for everyone involved.

About the Author

Elizabeth D. Spilotro

Ms. Spilotro practices in the area of estate planning, charitable planning, estate settlement and probate, and trust administration, and also handles adoption cases. Ms. Spilotro advises individuals, couples, blended families, and unmarried couples in committed relationships to plan for incapacity, care for loved ones with special needs, and provide for family and beloved causes after death. In her adoption work, she counsels prospective birthparents on their options for adoption placement, facilitates selection of prospective adoptive parents, negotiates post-placement contact, and handles all legal aspects of adoption finalization.

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