Love in the Golden Years: Pre-Marital Agreements and Updating Estate Plans

Love is in the Air:

Finding love at any age is a beautiful thing.  Finding love late in life can be a renewal for some couples, but create uncertainty for adult children and grandchildren.  Many older couples are entering assisted living facilities together or finding love once they arrive at assisted living facilities, as mentioned in this related article about romance in assisted living communities.    Older couples should consider entering into a pre-marital agreement and updating their individual estate plans if they plan to marry in their golden years. 

 

Pre-Marital Agreements

A pre-marital agreement would help the couple establish which property belongs to which person and how assets, money or bank accounts should be allocated.  While many older generations may be hesitant to enter into such an agreement, using this as a document to define exactly what property exists will be helpful as an estate planning tool and a road map for the families of the couple in the event one person dies or becomes incapacitated and cannot communicate what assets exist. 

 

Updating Estate Planning Documents

Of course, estate planning documents--wills, powers of attorney, and directives to physician--should be reviewed and updated to reflect who holds the powers of attorney and how a person's estate should be distributed upon their passing.  Many people create estate planning documents when their children are born and seldom update their estate planning documents before they reach their elder years.  By this time, a spouse may have passed away or entered various stages of dementia and be unable to communicate their wishes.  Encouraging our older generations to define their wishes in estate planning documents will grant peace of mind to our elders and their children and grandchildren alike. 

 

For more information or to discuss your estate planning needs, contact me to schedule a conference.

What Happens if You Die Without a Will in Texas

Many folks don't believe they need to make an estate plan because they don't own an "estate"--a 100 acre ranch or a large inheritance to leave behind.  Let's be clear--if you have a pickup truck and a checking account, you have an estate.  Proper prior planning can limit the burden on your loved ones when you die or become incapacitated, which is why I recommend that every adult in Texas have the Big Four: 1) a last will and testament; 2) a statutory durable power of attorney; 3) a medical power of attorney with HIPPA release; and 4) a directive to physicians.

The natural follow-up question people have is "what happens if I die without a will?"  In Texas, if a person dies intestate--without a will--statutory law determines what happens to your estate.  Below is a brief summary of what might happen if a person dies intestate.

Single Person with No Children

If a single adult with no  children dies without a will in Texas, the Estates Code states that the assets be distributed as follows:

• Both parents still living: Half to the father of the decedent and half to the mother of the decedent.
• One parent living, and siblings or siblings' descendants survive: Half to the living parent of the decedent; half to siblings or their descendants equally.
• One parent living, but no siblings or siblings' descendants survive: All to the living parent.
• No parents living, but siblings or siblings' descendants survive: All to siblings or descendants equally.

Single Person with Children

If a single adult with children dies without a will in Texas, the Estates Code states that the assets be distributed to the decedent's children or their descendants equally.

Married People

If a married person with no children or descendants dies intestate in Texas, the assets will be distributed as follows, depending on whether the property is separate property or community property: 

• Separate Property:
• Separate personal property all goes to the surviving spouse
• Separate real property
• Both parents living: half goes to the surviving spouse; one-quarter goes to the surviving mother; one-quarter goes to the surviving father.
• One parent living, siblings or siblings' descendants survive: half goes to the surviving spouse; one-quarter to the living parent; one-quarter goes to the siblings or siblings' descendants
• One parent living, but no siblings or siblings' descendants survive: one-half to living parent; one-half to surviving spouse
• No parents living, but siblings or siblings' descendants survive: one-half to siblings or their descendants equally; one-half to surviving spouse
• No parents or siblings or siblings' descendants living: all to surviving spouse
• Community Property:
• All to the surviving spouse 

Married People with Children

If a married person with children or descendants dies intestate in Texas, the assets will be distributed as follows, depending on whether the property is separate property or community property and whether the children and their descendants are also those of the surviving spouse:

• Separate Property:
• Real Property: one-third life estate to surviving spouse; remainder to children or their descendants equally, subject to life estate. All real property is owned by decedent's children when surviving spouse dies.
• Personal Property: one-third to surviving spouse; two-thirds to children or their descendants equally.
• Community Property:
• Children and descendants are those of the surviving spouse:
• Real Property: all to surviving spouse
• Personal Property: all to surviving spouse
• Children and descendants are NOT those of surviving spouse:
• Real Property: one-half to surviving spouse; one-half to children or their descendants equally
• Personal Property: one-half to surviving spouse; one-half to children or descendants equally 

Please note this is a summary only.  For more information or to discuss your estate planning needs, contact me to schedule a conference.