A beautiful wedding dress, party, family gathering together in celebration. Is the celebration important? It may be. But, what does that marriage means in legal terms?
After a presentation the other day, someone exclaimed: Now I understand why gays were so concerned about marriage. It was much more than just “getting Married” it was about legal consequences.
It does not matter if you are in a heterosexual or homosexual relationship, the consequences of not being married and not having the right plan in place could be catastrophic.
Ana (not her real name) had been with Tom for years. They had two children together. Tom had three adult children from a prior marriage, two of whom had no relationship with their dad.
Tom always provided for his wife and children while Ana was a housewife. Since he was the breadwinner, he purchased the house under his own name and investment accounts were only under his name. Ana and Tom never married. They felt married because of the years they were together. However, they never “legally” married.
Florida does not recognize “common law marriage” or marriage after a certain period of cohabitation absent signed and legalized documents. If you do not have the legal documents signed and recorded, you are not married in Florida.
Tom died after a sudden truck accident.
Ana thought she was financially protected because Tom had build some wealth and a paid roof for her and the children. But, this was just a wishful thought.
Tom never did any planning. He never felt it was important or necessary so he had no Will or Trust in place.
When you do not create a plan for yourself, the law has one drafted out for you. In this case, everything Tom had was to be divided among his five children. Ana had absolutely no right to his money or the house. What’s more, since Tom and Ana’s children were minors, Ana had to open a guardianship case in Court to be able to receive the money for the children. This means, Ana has no freedom to spend the children’s money except with court approval. Once the children turn 18, mature or not, ready or not, they will receive their money to spend in whatever way they want.
Ana on the other hand, felt betrayed and depressed. Tom had the best intentions but did not take the right actions.
Marriage would have solved part of the problem. If Tom and Ana would have been married, Ana would have had the right to half the house or she could have chosen to live in the house until she died and only then it would go to Tom’s five children. She would have received half of all moneys Tom had under his name and the children would have received the other half (equally shared by the five children).
If Ana had been married, things would have been much better. However, if Tom had taken the time to create an estate plan, everything could have been different. He could have arrange to provide for all his children but also for his “wife.” He was the one who never let her work, but he also was the one who left her on the street.
So marriage may be part of the solution but the real solution is having the right estate plan in place.
If you feel you are in a similar situation, give us a call. We will be glad to answer all your questions.
Yahima Suarez, Esq.
Life Planning & Beyond