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TO MARRY OR NOT TO
MARRY (AGAIN) –
THAT IS THE
QUESTION
By Martin H. Cohen,
Esq.
Elder Law Attorney
This article is not
about romance. Rather, it covers basic information on the legal issues
involved in marriage that are too often ignored when you focus on romance or
emotional security. A twenty-something couple contemplating a first
marriage can afford to eventually learn about these matters. If you are the
parent or grandparent of a twenty-something, you must consider the legal
issues of marriage before getting married again. However, if you have
already taken that second or third plunge, pay attention. You and your
spouse can still make a plan to protect each other and your
respective children.
Marriage is a legal
contract! When you enter into that contract, you assume legal
responsibilities toward your spouse, and you acquire legal rights from your
spouse. All comments in this article pertain to Florida law and Florida
residents.
What rights and
responsibilities are created when you get married?
1.
Elective share. When you die,
your spouse is entitled to 30 percent of your “Elective Estate.” Your
Elective Estate not only includes property in your name alone, but it also
includes most assets with beneficiary designations such as bank accounts,
securities, IRA accounts, your interest in jointly held property, annuities,
certain interests in trusts, the cash value of life insurance, and even
property that you might transfer to a child during the one-year period
preceding your death. In other words, you cannot easily ignore your
spouse’s rights to his or her elective share of your estate. Clients ask me
how the surviving spouse will be able to claim his or her share if the
assets are left in trust for a child. The answer is that the surviving
spouse can open a probate proceeding and force the child to return the
assets in a sufficient amount to satisfy the elective share.
2.
Pretermitted Spouse. Let us
assume that you made a will some years ago leaving your entire estate to
your children. Then you marry and fail to make a new will. You assume that
your entire estate will be distributed to your children. In reality, your
spouse will be entitled to the share of your probate estate
(one-half) that he or she would have received had you died without a will.
He or she is considered a “pretermitted spouse” (i.e., omitted from your
pre-marriage will). The law assumes that you would have provided for your
spouse if you had made a will after marriage. Your probate estate consists
of property in your name alone. So, it is hard to say whether the
pretermitted share would be greater or less than the elective share.
However, your spouse will claim the greater of the two.
3.
Exempt Property and Allowances.
When you die, your spouse is also entitled to household furniture,
furnishings and appliances at your residence of up to $10,000, as well as
any automobiles held in your name and used by the immediate family, your
interest in any Florida Prepaid College Program contracts (possibly taken
out for your grandchildren?), as well as certain death benefits available to
the spouses of teachers and school administrators. In addition, your spouse
may be eligible for a family allowance of up to $18,000.
4.
Homestead. Special provisions
are included in the Florida Constitution so that spouses will not be left
without a home. This is the same part of our constitution that prevents
creditors from taking away your homestead, i.e. your primary residence.
In order to understand the
effect of the homestead provisions, imagine that you paid $150,000 cash for
your condominium, and then you got married. Did you know that you can no
longer sell it unless your new spouse agrees to sign the deed? Similarly,
if you later need to take some of your equity out of the condominium by
getting a first mortgage loan, your spouse will have to sign the mortgage.
Even if your will says that
the condominium goes to your children upon your death, your spouse will have
the right to live there for the rest of his or her life. Moreover, your
spouse’s entitlement to a life estate in your homestead is in addition to
his or her rights to the elective share, inheritance as a
pretermitted spouse, exempt property, and the family allowance.
5.
Medicaid. Case law
indicates that neither you nor your spouse is personally responsible for the
other’s medical bills (unless, of course, you guarantee his or her account).
However, if either you or your spouse should need nursing home care, the
Department of Children and Families will count all of your assets in
determining whether you meet the financial eligibility criteria for
Medicaid. Although this is not technically a question of marital rights and
responsibilities, you should be aware of the consequences.
Consider the case of a
couple that I helped last year. They were in their eighties and had been
married for 15 years. She had nominal assets (under $2000) and needed
nursing home care costing around $6,000 per month. He was wealthy but
refused to pay for her care. She was not eligible for Medicaid because his
assets were counted as hers. Was there anything that she could do? Yes,
there were answers, none of which were satisfactory to both parties, and
they go beyond the scope of this article. Nevertheless, planning would have
avoided their dilemma.
Whether you are thinking
about getting married or have already remarried without reconsidering your
estate plan, there are techniques available to plan your estate and your
spouse’s estate so that they will be distributed as you intend, and so that
you can avoid the Medicaid predicament described above.
This type of planning is
very tricky, and attorneys involved in this area must consider numerous
legal, financial, and personal factors, including the parties’ ages, health,
previous marriages (and obligations from those marriages), children, the
nature and extent of their respective assets and how the titles are held.
For a free telephone consultation, you may call me at (954) 315-0355.
If you have questions about anything on this
website, or if you wish to schedule an appointment, contact Mr. Cohen at
(954) 315-0355
or by
E-mail.
Mr. Cohen maintains two offices for the practice of
Estate Planning, Elder Law and Disability Law in Broward County, Florida
for the convenience of his clients:
Flamingo Falls Professional Center
1806 N. Flamingo Rd.
Suite 300
Pembroke Pines, FL 33028
and
Crossroads One
8201
Peters Rd., Suite 1000
Plantation (Fort Lauderdale),
FL 33324
For those of you who are unfamiliar with South Florida geography, Broward
County has 30 municipalities, including:
Coconut Creek,
Cooper City,
Coral Springs,
Dania Beach,
Davie,
Deerfield Beach,
Fort Lauderdale,
(Ft. Lauderdale),
Hallandale Beach,
Hillsboro Beach,
Hollywood,
Lauderhill,
Lauderdale Lakes,
Lauderdale-By-The-Sea, Lazy Lake,
Lighthouse Point,
Margate,
Miramar,
North Lauderdale,
Oakland Park,
Parkland,
Pembroke Park,
Pembroke Pines,
Plantation,
Pompano Beach,
Sea Ranch Lakes,
Southwest Ranches,
Sunrise,
Tamarac,
Weston,
Wilton Manors.
For
information on these cities, click on the appropriate link.
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