Marriage, A Loving And Legal Relationship

Published in The Post Standard, August 2002. Bridal Article

When two people marry, a great deal will change in their lives. Many of these changes are legal since the law gives married people many new legal duties and rights.

The law is often concerned with who owns property and who will receive property after someone dies. Marriage changes a great many of the rules about property.

Many people have bank accounts and property titled jointly in their name plus someone else's name. For example, Brian is single and has a house and a $10,000.00 CD titled in the name of Brian and his mother. Then Brian marries Karen. However, Brian and his mother still jointly own the house and the $10,000.00 CD. If Brian dies while being married to Karen, the joint property laws state that his mother receives the house and the entire $10,000.00 CD. His wife Karen receives neither of these assets.

To make sure that Karen receives these assets, Brian has two choices. Brian can re-title each of those assets in the joint name of Brian and Karen, his new wife, or he can re-title them just in the name of Brian.

If Brian dies and all his assets are titled in the joint names of Brian and Karen, then Karen receives these assets upon the death of Brian because Karen is a joint owner.

However, if these assets were titled in the sole name of Brian, then his Last Will and Testament tells us who inherits those assets. Brian's Last Will and Testament might say that all the assets in the sole name of Brian are to be inherited by his wife, Karen. Yet, Brian is not required to leave everything to his wife. Brian can choose to leave some or all of his assets to his wife.

Suppose Brian got married and never updated the Last Will and Testament he signed while he was single where he left everything to his sister. Even if Brian left everything to his sister and nothing to his wife in his Last Will and Testament, New York law allows the wife to take $50,000.00 or one third of the estate, whichever is larger. Naturally, while we have been discussing the situation where Brian owns property, the same rules apply when Karen owns property.

Some newlyweds might say that they have nothing to worry about since they do not have any significant assets. But they may be forgetting about their life insurance, 401-K plans and IRA's. Newlyweds should re-examine the beneficiary designations on any asset that permits a beneficiary. This is because even after you become married, the beneficiary designations you made prior to your marriage are valid until you change them.

The fact that you just got married does not automatically change the beneficiaries. You must actually change the beneficiary to your spouse. If you forget to name your spouse as the new beneficiary, in most cases, your spouse will not receive the life insurance, 401-K plans, IRA's and any other asset that passes to a beneficiary should you die.

Even if you have no assets, once you become married you may need to change the person who is named as your Health Care Proxy or your Power of Attorney. A Health Care Proxy is a document that appoints someone to make health care decisions for you in the event that you are incapacitated. A Health Care Proxy is to be distinguished from a Power of Attorney. The two are not the same document. A Power of Attorney is concerned with non-medical issues and a Health Care Proxy is concerned with medical issues.

You can name any adult to be your Health Care Proxy. If you are married, the person you trust most to make health care decisions for you will probably be your spouse. However, if you created a health care proxy before you were married, the old health care proxy is still valid, so you should considering changing it once you become married.

The Durable Power of Attorney is a document that allows you to grant to another person, called your agent, the ability to do transactions on your behalf. People usually name their spouse to be their agent. This agent can do anything you could do. For example, your agent can do banking transactions for you.

The word "durable" refers to the fact that the power of attorney will continue to be valid even if you become incapacitated or incompetent. It is extremely important to have a Durable Power of Attorney, because one can become disabled or incompetent at any time.

If someone is now married, they will often name their spouse to be their power of attorney. One spouse especially needs a power of attorney when the other spouse is away for a long period of time on business trips or is away due to being called up for active military service.

As you can see, when one enters into a marriage, one enters into a new relationship, with various rights and duties governed by the law. While marriage is more than merely a legal relationship, newlyweds can benefit by becoming aware of how the law treats married people.

Mr. Stephen T. McMahon is an attorney at the McMahon Law Firm, an estate planning law firm located in Camillus, New York. Mr. McMahon is a graduate of the University of Notre Dame Law School and a member of both the New York and California bars. You can e-mail your questions about estate planning to Mr. McMahon at email me.