IMPACT OF MARRIAGE ON EXISTING DOCUMENTS
Automatic Revocation. Under
Oregon law, a Will is revoked by a subsequent marriage unless the Will
shows an intent that it not be revoked by the marriage or was drafted
under circumstances establishing that it was in contemplation of the
While it can be argued that
Wills explicitly stating that the individuals consider themselves life
partners should not be deemed revoked under this law, this is uncharted
legal territory, and any newly
married couple with existing Wills should contact their lawyer and do
simple codicils to evidence their intent that their existing Wills are not
revoked by the marriage. Alternatively,
the couple could sign new Wills.
In either case, because of the impending legal challenges for
same-sex marriage, the document should contain a provision that
specifically addresses the circumstances of the marriage and the couple's
intent that the Will and the provisions in favor of the spouse not be
changed by any future changes to the legality of their marital status.
In addition, the provision should address the potential that the
relationship will be severed by a legal dissolution of the marriage.
I married ___________on March 4, 2004, in Multnomah County, Oregon.
All references to "my spouse" are to him/her.
In the event our marriage is voided or becomes invalid for any
reason, it is my intention that this instrument continue in full force and
effect, and that provisions naming _____________ not be revoked. Notwithstanding the above, if our marriage is legally
dissolved, I intend that this Will be revoked under the provisions of
Oregon law then in effect.
Intestate Succession. If
a Codicil or a new Will is not executed, the prior Will may be considered
legally revoked. Upon the
death of one of the spouses, he or she will be treated as having died
without a Will and his or her assets will be distributed according to
Oregon's intestate succession laws. This
may or may not reflect the couple's intentions.
The intestate distribution rules generally provide that the
surviving spouse will receive the entire estate if there are no children
or if all of the children belong to both spouses.
If the decedent's children are from a previous marriage, the
surviving spouse receives one-half of the estate and the decedent's
children share equally in the other half.
The intestate laws may or may
not accomplish the client's wishes. For
example, if either spouse has a child who is not the biological or adopted
child of the other spouse, 50 percent of the estate will pass to the
surviving spouse and 50 percent to the decedent's children.
Testamentary Trusts. Any
testamentary trust that the decedent may have included in the revoked
Will, such as a trust to hold the assets on behalf of a minor until the
minor attains a specified age, may no longer be effective because the
Will, and all of its provisions, may be deemed to be revoked.
Revocable Living Trusts.
A Revocable Living Trust is not revoked by a subsequent marriage
under Oregon law. However,
the pourover Will that is routinely executed along with the Revocable
Living Trust will be revoked by the subsequent marriage.
Consequently, the overall estate planning may no longer be
Powers of Attorney
Powers of Attorney for
Finances should remain valid and should not be affected by the subsequent
marriage. However, some
Powers of Attorney for Finances have tax-related provisions that may be
impacted by marriage.
Advance Health Care Directives
Advance Health Care Directives
should remain valid.
Any documents that the clients
may have signed regarding the disposition of their remains or the
nomination of guardian/conservator should remain valid.
ESTATE PLANNING AFTER THE MARRIAGE
While marital status does
confer some legal rights, it is not an estate planning panacea. Spouses must still affirmatively appoint each other to make
financial and healthcare decisions in the event of incapacity.
Further, as discussed above, a spouse will not necessarily inherit
the entire estate if the decedent spouse had children from a prior
Financial Decision Making
It is a common misconception
that spouses can make financial decisions for spouses who are
incapacitated. Some examples
of the types of actions that a spouse cannot take on behalf of an
incapacitated spouse are: selling
the house; getting a mortgage or home equity line; dealing with life
insurance, retirement plans, or other separately owned assets; signing tax
returns; canceling separately held credit cards.
Most spouses name each other in Powers of Attorney for Finances
that give each other the authority to handle these matters.
Health Care Decision Making
An Advance Health Care
Directive gives a person the opportunity to name a healthcare
representative as a surrogate medical decision-maker.
Although there are provisions in Oregon law giving a spouse
priority to make decisions about withholding or withdrawal of life support
in certain situations if an Advance Health Care Directive has not been
executed, the law does not clearly give a spouse priority to make other
health care decisions, such as whether to have surgery or to begin
treatment. If there are
disagreements between the spouse and adult children, it may require a
court to appoint a guardian. An
Advance Health Care Directive gives the client the chance to say who will
be the primary decision maker.
The Advance Health Care
Directive also gives the client the opportunity to give instructions to
the health care representative about withholding or withdrawal of life
Disposition of Property at Death
If someone dies without a Will
or Revocable Living Trust, the Oregon intestacy statutes will direct 100
percent of the estate to the spouse if the decedent has no children, or if
all of the children are the issue of both spouses.
However, if the decedent had children from a prior marriage, the
surviving spouse will only inherit 50 percent of the estate.
To ensure that property passes at death to the intended person(s),
it is advisable that clients execute new Wills and/or Revocable Living
Trusts after the marriage.
LEGAL ADVANTAGES AND DISADVANTAGES TO MARITAL STATUS
Preference in Decision-Making
There are a number of areas in
which the law provides that a spouse has a preference in making decisions.
Among these are the following:
Possible preference in court appointments as
guardian or conservator
Authority to make decisions regarding disposition
Authority to make decisions regarding withholding
or withdrawal of life-sustaining treatment
Spousal Elective Share
If the deceased spouse did not
include the surviving spouse to receive a share of the estate in his or
her Will, the surviving spouse can elect to take 25 percent of the probate
estate (with some limitations). If
this is not the client's intent, it is advisable for the parties to sign a
waiver of the elective share. It
is not uncommon for heterosexual couples to do this, either in a
premarital agreement or a separate document.
Support for Surviving Spouse
A court can order that the
estate should provide for the support of the surviving spouse and
dependent children, which will have priority over most creditor claims. Also, the law allows the spouse and dependent children to
stay in a house owned by the estate until one year after the death of the
deceased spouse. Of course,
if the house passes automatically to the surviving spouse by way of title,
or to the surviving spouse under the Will after payment of creditor
claims, use of this provision will not be necessary.
Estate Tax Consequences
Under the federal Defense of
Marriage Act, same-sex marriages are not recognized for purposes of federal
law. While this may be
estate tax laws that benefit "spouses" may not currently apply.
For example, there is an unlimited marital deduction under federal
law for both federal estate and gift taxes for any transfers between
spouses. This deduction may not
apply to same-sex spouses.
The Oregon inheritance tax
affects estates of people who die with estates in excess of $850,000.
There is a marital deduction that allows a deceased spouse to leave
the entire amount to the surviving spouse without an inheritance tax at that
time. Presumably this will
apply now to Oregon married same-sex couples.
However, because many of the
Oregon inheritance tax laws are intertwined with federal law, the
application of these laws to same-sex marriages will be subject to
interpretation over the next several months and years.
Many public are benefits
generated from federal programs, and at this time the federal Defense of
Marriage Act disallows recognition of same-sex marriages for purposes of
Some public benefits programs
are state funded, or are governed by statutes and rules at the state level.
Eligibility for these programs will be affected by marriage.
Whether marital status will be advantageous or disadvantageous will
depend on the circumstances. For
example, there are Medicaid rules that protect a spouse from impoverishment
when the other spouse needs expensive long-term care.
On the other hand, the income and assets of both spouses will be
counted for purposes of eligibility for benefits that are based on financial
need. People who receive public
benefits are well advised to obtain legal advice about the ramifications of