Two souls have become one. But your estates are still “his” and “hers” unless you update your estate plan.
While the State of Florida recognizes that even without a Will your spouse is entitled to a portion of your estate upon your passing, this “portion” may not be what you want your beloved to have. For example: what if you and your spouse have good jobs, and you planned on giving some money to your niece for college or to a special charity that you hold near and dear. If you die without a Will, leaving no children, your spouse will get 100% of your estate. You will be relying on your spouse to carry out wishes that you didn’t place in writing (your Will). How likely is that to happen, do you think?
As for so many of us, including me, this may not be your first trip down the aisle. As a parent of children from a prior marriage, I needed to be sure not only that my new spouse but also that my children were taken care of in my Will. In Florida, the intestate laws, those which apply to persons dying without a valid Will, determine the division of assets between children of prior marriages and the current spouse. In cases where a spouse dies, leaving children or grandchildren who are not the legal children or grandchildren of the surviving spouse, the surviving spouse receives one-half of the estate and the children of the deceased spouse that are outside of that current marriage receive the other one-half.
This may sound fair, but suppose that when you pass, your children are grown and doing well for themselves, whereas your spouse needs money to live on. Without a Will, you will be hoping your children do the right thing and take care of your spouse after you are gone, but the law certainly doesn’t require that.
Or suppose your spouse is the one with the good job and access to funds while your children still need to go to college. Without a Will, your spouse and prior children will each get half of your own smaller estate, and you will be relying on your spouse to pay for his or her stepchildren’s education. This gets even more difficult if you also have children together in this marriage who need to have college paid for.
In any scenario where there is no valid Will, children of the current marriage are not given any interest in the estate. Instead, the State assumes that the surviving spouse will take care of those children. This may sound relatively safe, but suppose your spouse remarries and has additional children. Your children’s share of your money just got smaller.
What if you wanted some of your estate put away in a fund for your children’s college? Without a Will, that would only happen if your spouse does it for the children after you are dead. If you are the bread-winner, the money you would have left for your children might very well be long spent by the time they reach college. This doesn’t mean your spouse is an unconcerned parent. It simply means that the plans that you and your spouse had that were based upon your living and working until your kids were through college were disrupted. Without proper planning, those plans will almost surely go out the window.
What does all this mean to you? It means that the State Legislature decided long ago how to divide up your estate between your spouse and your children. Wouldn’t you like to decide that for yourself? While you can’t legally cut your spouse out of your estate without your spouse’s consent (they are entitled by law to roughly 1/3), you can certainly spell out your wishes and decide whether you want to give your spouse more or less than the intestate laws allow. You may also set up trusts to keep money for your children’s future care and education. Planning your estate doesn’t have to be an all-consuming practice in control from beyond the grave, but a little time spent planning now will assure your spouse and your children of your care, even if something does happen to you.
