Getting Married: The Top 5 Legal Matters to Consider

Marriage. You get happiness, fulfillment, a family, and all your spouse’s assets – obvious, right? 

Maybe not.

Here’s the top 5 legal matters for you to consider when it comes to sharing assets with your new spouse:

1. Open a joint account?

Joint accounts and joint ownership of a home mean whoever lives longer owns the asset free and clear of the other’s estate. This is very convenient and yet, it should not be overlooked as a possible source of problems as well. For example, if you have a significant asset, like an account you inherited from your grandmother or a home that you already purchased, you should at least think twice before adding your spouse’s name to the asset. It could be that your underlying intention is to return that asset to your side of the family, or to take that asset with you if your marriage ends in divorce.

Young and idealistic? You assume that everything’s going to be joint, and the idea that something should be segregated never occurs to you, so watch out for this trap.

2. Write a will.

If this is a first marriage and you’re starting a family together, you probably assume that your spouse will look after your children’s interests, so you may draft a will that gives all of your assets to your spouse. But it may be wise to include other significant people in your will. 

In larger estates, you could be better off leaving the estate in trust for your spouse; then your spouse will only have the rights for his or her lifetime, not actual ownership. You can leave your estate in trust either through your will (creating a testamentary trust within your will) or through a separate revocable living trust.

3. Assign power of attorney and healthcare proxy

Since you share so much, it would be rare for you not to give your spouse the ability to act on your behalf in financial and legal matters. But sometimes, we realize that our spouse has no clue what’s going on with such things, and it’s better to give power to a capable sibling or to a parent. The same thing can go for healthcare proxy (or durable power of attorney for healthcare).

You must include your spouse on a HIPAA (health privacy) release because otherwise he or she could have no place at the table when talking about your healthcare if you’re incapacitated (with some exceptions in some states). We have a Health Documents Toolkit that includes all of these documents.

4. Designate a beneficiary on your accounts

These act just like your will, in the sense that they predict where the asset is going to go. Your spouse may be the best choice as beneficiary, but you can also be selective here. Until you have kids you might want to leave an IRA, a life insurance policy, or an annuity to your mother, your brother, etc.

5. Draft a prenuptial agreement?

The law is very protective of the spouse when it comes to inheritance. Whether inadvertent or deliberate, it is not possible to totally disinherit your spouse, without a prenuptial agreement. And, when it comes to qualified retirement accounts like a 401k, the spouse has to release the right to be the beneficiary by signing before a notary public or a retirement plan representative. 

If you’re marrying later in life, or you each have estates of your own to bring into the marriage and both of you expect to be working and saving, then, you may want to delineate in a prenup that your estate shall pass as you prefer, and not simply to each other. Your spouse in that case must waive claims to their “statutory share” of your estate – and you will do the same. It’s only fair. But then, anything is fair in love and war!

In Getting Remarried: Top Five Legal Matters to Consider, we address the considerations for a second marriage.

If you’re newly married or preparing for marriage, check out our brief online diagnostic tool to see if your estate needs attention.