Many people put off getting a will because they think that their spouse and kids will just get everything automatically anyway. These people are thinking of state “intestacy” laws that govern what happens to property when there is no will. These laws vary from state to state and situation to situation. This means that it is possible that your surviving spouse will not get everything or your children. Leaving it to the state to divide your property can cause damage down the road because you did not take ownership of your assets.
You may not mind at first if your spouse and split your money between themselves. However, your estate plan does more than just address this one aspect. Here are some other examples.
If you have minor children and both you and your spouse die, the children do not have a guardian. The court will have to appoint a guardian without any input from you concerning your wishes. The court will do the best they can to learn about your family life and who would be good guardians, but they will not know you and your situation as well as you do, and not giving your preferences is a lost opportunity.
Intestacy laws assume that a family consists of two parents and their children from their own marriage. Of course, not all families are like this, and the legal situation gets complicated quickly.
According to Wealth Management, there about 50 different kinds of families in the US. About 18% of Americans are remarried, and millions of children are living in blended families. Laws have often not caught up, or if they have, it is impossible to truly discern what everyone would want. This leads to results that no one wanted, such as loved by un-adopted step-children being disinherited or a divorcing child-in-law getting an inheritance. The point is that intestacy laws are drafted for populations in the millions, and your family situation and desires may not match these laws.
Creating your own estate plan with a will or trust allows you to take control of what happens.
What if You and Your Spouse Are Separated?
Often, separation-but not divorced-means that your spouse is counted as still married to you and is supposed to get part of your inheritance. Being married protects your spouse from being disinherited in many states, which guarantees them a portion of your inheritance even if you are separated.
Intestacy also offers no protection from creditors or lawsuits. These claims often take precedence over family, which means that your loved ones would get only what is left over from these claims.
Final Thoughts on Intestacy Law
You should not leave it to state laws to control how your inheritance is given out or who can claim it. The best way to take control over your estate is talking with an estate planning attorney to review your options.