Are You Married? Separated? Gilroy Estate Planning Attorney

I sometimes come across very interesting marital issues. I don’t practice family law, but sometimes discussing the estate planning issues can turn up new questions.

One client needed to do some urgent Medi-Cal planning to protect his properties. He had ended his second marriage 7 or 10 years earlier and they had a list of the properties that belonged to him, but something troubled me about the situation so I asked the family to check with the county to see if their father was legally divorced. Lo and behold, unbeknownst to everyone involved, the man and his second wife were still married because the paralegal they had used for their divorce had never filed the final papers with the court. As if that wasn’t bad enough, the court then required that they start the divorce process all over again from the beginning since so much time had lapsed since they had originally divided their properties.

And what about thinking you’re married, but you’re not? A recent client told me that she had been married for 34 years, but no…. We don’t have common law marriage in California, so they weren’t legally married. Her husband had intended to disinherit his children whom he hadn’t seen in decades, and now her husband was grievously ill in the hospital without the proper estate planning documents. If he had died then, none of his property would have gone to the woman he thought was his legal wife. If he would have died without the proper paperwork expressing his wishes, everything he had, including half of the house, would have gone to the children he intended to disinherit, and his “wife” of 34 years would have been left out in the cold.

And what about separation? A client told me that she was separated, but it wasn’t a legal separation. She signed a document allowing her husband to take all of his retirement money without giving any of it to her, and he did just that! He traveled the world and had fun, and she assumed that because she managed and maintained the rental properties they owned together, that those properties would be for her. Not so. Several years later, after spending all of his retirement funds, the husband was back and asking for his half of all the rental properties which had now increased substantially in value.

Perhaps I shouldn’t be so amazed that these things happen as often as they do, but I’m still continuously amazed.

What if you’re definitely married, but it’s a second or third marriage? Sometimes the couple is very clear on what happens to their assets when the first one dies, and then when the second one dies, but sometimes they haven’t really thought it through, or they’ve given it some thought, but they each have a very different idea of what should happen. And despite age and health issues, there is little certainty regarding the order of death, so you need to plan for both possible outcomes. I have seen families plan for a very ill father to die, and then the mother dies first. Be prepared for either outcome.

Whether you think you’re married or separated or divorced, you should know your correct legal status and you should also know how that affects the planning for the proper use of your assets if you’re incapacitated, and for the proper distribution of your assets following your death. Don’t play around with this. Make sure you’ve planned properly.