Marriage & Living Trusts2017-12-15T00:04:15+00:00

Critical To Update Your Living Trust Upon Marriage

If you presently have an estate plan / living trust and are planning to marry or have recently become married you need to be aware of the following:

Revocation by Operation of Law.

As a rule, the act of marrying will automatically revoke (invalidate) all previous estate plans whether it is a Will or a Trust. As a matter of public policy these laws assume that you would have wanted to provide for your new spouse, but just “forgot” or never got around to making the change in time. This is called revocation by operation of law and to avoid it you must legally demonstrate that you are not “just forgetting” by either updating your existing estate plan / living trust or executing a new estate plan / living trust. This applies even if you plan to leave your estate plan exactly as written before your marriage with the same beneficiaries.

High Potential for Major Litigation Expenses & Full Probate:

If you fail to observe these legal requirements it will generally allow a surviving spouse to successfully challenge any estate plan that was executed prior to marriage and force the estate to be distributed according to spousal property law and the laws of intestate succession. Often, this not only means the expense and hassle of full probate but also involves significant litigation expenses.

Must Update Your Estate Plan Immediately Upon Marriage or Remarriage.

Therefore, immediately after becoming married it is critically important to formally engage a competent attorney to interview you and completely review and update your living trust to either include your new spouse (to inherit some portion) and/ or to draft comprehensive statements of intent (statements that demonstrate a clear intent to exclude or limit a spouse’s share). As part of this process you should also sign a new will reflecting the fact that you are married. Our office is usually happy to provide these services if you so choose but the important point is that you get it done whether you use our office or not.

A Nuptial Agreement Is Also Highly Advisable Despite Any Post-Marriage Update:

If you are to be more completely advised on this issue then you should also be aware that spousal property law (i.e. laws governing community and separate property) provide a potential secondary avenue of challenge for any surviving spouse. That is why, aside from the absolute importance of an immediate post marriage estate plan update, we are also strongly advising the addition of a nuptial agreement with your spouse to help guard against this other potential avenue of challenge. The nuptial agreement can be completed before updating your trust but we advise updating your trust first because you can get this one important part of the equation out of the way fairly quickly, easily, and unilaterally. This also allows the nuptial drafting attorney to reflect an understanding of the trust provisions as part of the nuptial agreement.

Prevent Challenges & Family Disputes With Your Spouse

The complex nature of spousal property law is why a nuptial agreement is so important. Property that each of you thought was separate property can easily take on a community property component without either spouse necessarily being aware of it — regardless of how it is titled. This effectively gives the surviving spouse, or the deceased spouse’s estate, a claim on what may have been perceived as separate property. Absent a comprehensive nuptial agreement, this is just a short example of the complexities and problems that can be encountered. That is why a nuptial agreement goes a long way towards helping both of you guarantee that your assets are distributed at death according to your wishes as well as preventing arguments, misconceptions, challenges, and litigation at death. Competent family law attorneys can best assist each of you with this matter. (We do not offer this service.)

Our apologies for such a complex answer to what is often perceived as such simple matter. It is just a fact that under the law, this is not a simple matter.