Here's a quick recap on what happens when a spouse dies without a will: The deceased spouse will die intestate and his/her estate will be distributed according the specific Probate Code of your state.
But wait! Isn’t it all “ours” anyway? Not necessarily. California is a community property state. Meaning unless a written agreement exists, the surviving spouse automatically owns half of what either spouse earned during the marriage. Separate property (acquired before marriage or inherited) will automatically go to the surviving spouse if there were no children. If the deceased spouse had children (from this or a prior marriage), the surviving spouse would also inherit 1/2 or 1/3 of the separate property depending on the number of children. Other states, like Virginia (where I am also licensed) are not community property states so distinctions between separate property are not made the same. If there is no will, the entire estate goes to the surviving spouse unless the deceased spouse has children by someone other than the surviving spouse. In those cases, the surviving spouse would only be entitled to 1/3 of the estate.
Bottom line, deal with inheritances to children from prior marriages by designating your wishes in a will and/or a trust. Not doing so may cause severe problems for your spouse after your death and may create hard feelings among your loved ones. Now for the tips. Ready? Set, Go!
1. Have a Power of Attorney to act on behalf of your spouse. Unless you are both named on the business, the bank accounts, etc., you should have a Power of Attorney letter handy naming each other (or someone else if that is best for you) as your designated representative in order to keep life going in the event one of you becomes sick or incapacitated. This is crucial to have more than ever in the middle of a pandemic.
2. Keep your estate plan up to date! An old estate plan is like an expired car insurance note. It is worthless if it does not do what you need it to do when you need it to. Always update your estate following any of these significant life events:
• Birth/adoption of a child
• Death of beneficiary or named guardian
• Birth of grandchildren or great-grandchildren
• Moves or purchase of property in another state
• Your executor becomes ill or passes away
• You acquire a significant amount of assets or incur debt
• Selling or refinance of the family home
• Acquisition of a new business
3. Plan ahead for your children and name a guardian. If no guardian is named for your minor children, it will be up to the court to decide who will act as their guardian over their person, and over any financial assets you leave behind. Having this conversation with each other and with your planned guardian/s is crucial to avoid your children going into foster care in the event you both pass away.
4. Talk about each other’s preferences on end of life decisions and medical treatments. No one likes to talk about illness and death. We'd much rather talk about planning our goals and dreams and build memories! I get it. But marriage is "for sickness and in health til’ death due us part," right? So it is important to discuss each other’s plans so your surviving spouse is not left guessing on what you would have wanted.
5. Make sure your spouse knows what your assets and liabilities are after your death. One wise thing to do is to keep one file drawer at home dedicated solely to assets, and one to liabilities, and show your spouse where they are now. Make sure your spouse knows where all personal vital documents are stored and how to access them. All of our clients have access to a digital lifetime vault where these can be securely stored. If any of these things left you pondering, we're here to help! Click here to take our free confidential online stress test today and see how well your current estate plan would do if something unexpected happened to you or your loved ones today.