Q: My husband and I have been married more than 30 years but most of our property is in his name alone. I've tried to get him to add my name to the property or draw up a will, but he says it isn't necessary. He says I will get everything anyway, but I don't think that's true.
A: This is probably the biggest misconception when it comes to estate planning for couples. People assume because they are married, the surviving spouse gets everything. I get to have this conversation frequently.
This misconception probably comes from the fact most married couples own their property jointly. Since the couple owns the property jointly, the surviving spouse will own everything when a spouse dies. Easy peasy.
However, I've seen more than a few married folks that have property in their name alone. Usually when I see it, there was a reason for leaving the spouse off. Sometimes one spouse qualified for the mortgage on his or her own. Sometimes the property was bought prior to marriage or inherited from a family member.
Sometimes, and I hate to say it, it's simply paternalism. One spouse believes he or she knows what is best for the other and needs to take care of or protect the other spouse.
Whatever the reason, it's important to understand just because you are married doesn't mean you are automatically entitled to the entire estate at the death of a spouse. In fact, the intestate laws provide that a surviving spouse is usually entitled to only one-half of the deceased spouse's estate and less if they are a second or subsequent childless spouse.
There is special rule affecting personal property acquired during the marriage and of course there is a spousal allowance that helps the surviving spouse, but for the most part, the surviving spouse should only count on receiving half of the estate.
So what should a potentially disenfranchised spouse do? Start with having a conversation with the spouse. Make sure he or she understands what could happen if a plan isn't put in place. It may be the spouse just doesn't realize what is at risk.
Maybe you can set up an appointment with an attorney without telling your spouse. Then tell him you are taking him to lunch but go to the attorney's office instead. That's how my wife usually gets me to the dentist. She takes advantage of my weakness for chili dogs.
However you accomplish it, get him to make a will. It's one of the things that responsible adults do, especially the married ones.