What you need to know about...
Why should we get married?
Marriage affects your legal status in myriad ways -- in a report some years ago, the NYC Bar Association identified over 1,000 state and federal laws that are affected by marital status.
To name a few benefits in brief:
-- When you marry, you and your spouse are legally regarded as a family. You are each other's next of kin.
-- This enables immigration rights, Social Security benefits and many other forms of recognition.
-- It allows your spouse to inherit your assets and administer your estate, without any interference or claims from your parents, siblings or other family members.
-- If you have enough wealth to be affected by estate taxes, marriage creates potentially huge exemptions from tax.
-- When a married couple acquires property together, the property is protected from bankruptcy claims and is automatically inherited by the survivor when one dies.
-- One spouse can make medical decisions for the other in the event of a medical emergency.
What kind of bad things can happen if you're not married?
Here are a few tragic stories that I have witnessed personally (names are changed):
Chris and Avery, both around 40, were together since college. They owned a beautiful home together. Very suddenly and unexpectedly, Chris died. Because they were not married, their property did not pass automatically to Avery. Because Chris had no will, Chris's father was the administrator of Chris's estate and the also beneficiary of Chris's estate. The dad was Chris's next of kin; Avery was legally just a friend, with no more rights than a stranger. Avery was threatened with the loss of the home; it was only through years of expensive litigation and negotiation that Meyers & Associates was able to retain the home for Avery.
Alex and Jamie had a long-distance relationship for 15 years. Though they were from different countries, they planned to marry. The plans were complicated by their geography, family obligations and other things, but they were always fully committed to each other. Alex was a high earner and supported Jamie. Alex died unexpectedly, and Jamie was left with nothing. They had no property together, and Alex had no will or insurance to protect Jamie. Alex's family were the heirs; Jamie was not. Alex's family could have provided something voluntarily to Jamie, but they did not. Rather than embarking on a life with Alex, Jamie had to scramble to start a new career, just to earn a living, at a much more modest level than Alex had provided and that they had anticipated together.
Needless to say, each of these tragic results was horribly compounded by the personal grief involved. Conflict and economic strain add insult to injury.
What if we choose not to marry?
That's fine -- there are many reasons that you may reach this decision. But in that case, you need to think seriously about how you will provide for each other in the event that either of you dies or becomes incapacitated. If you have kids, or hope to, then the planning is even more important. These risks can be very well addressed through prudent estate planning, financial planning, and good legal advice with respect to property ownership.
A will or revocable trust can ensure that each of your partner will inherit your assets and control the administration of your estate. In the absence of a will or trust, your closest relatives are legally in charge, and your partner is entirely excluded.
Life insurance provides economic protection for lost income and other reorganizations of lifestyle that may be required if one partner dies. It's also a major way to ensure the welfare of your children.
Property ownership is often a stealth issue -- there are different legal structures that may be used when couples co-own property, and they depend significantly on marriage. Obtaining careful legal advice on these things -- and following it! -- is important.
Note also that if you have children together, they will be recognized as your heirs only if you are legally their parent. If one partner is the biological parent and the other is not, then an adoption may be needed to establish legal parentage (if you're married, parentage is assumed automatically).
A major benefit of marriage: Divorce
This may sound strange, but one of the major benefits of legal marriage is legal divorce. Divorce is sad and nasty, but it's an orderly legal process for the division of property, provision of economic support, and reorganization of family life. If you have a life together but are not married, and then you split up, there is no referee to say who gets what, or whether one is entitled to support from the other. And it's more complicated if you have property together, or children. As horrible as divorce can be, it's better than the free-for-all that can ensue from the breakup of a non-marital relationship.
Are there any down-sides to marriage?
Yes. If you are unsure of whether to marry, you should consult widely with legal and financial advisors in making your decision.
Many couples have to pay more income tax as a couple than they would as single individuals. This is informally known as the "marriage penalty" -- it's not intended to penalize marriage, but it works out that way. It's a holdover from earlier times, when one-earner families were the norm. Couples who fit that model may do well tax-wise, but if both partners earn an income, marriage may bring more income tax.
If you (or either of you) have been married before, have accumulated property or wealth before meeting your partner, or have children from any prior relationship, then marriage may raise an array of complicated issues. With such complexities, it is often preferable not to marry.
In such cases, if you do choose to marry, then disparities of income or wealth should be addressed in a prenuptial agreement if you do decide to marry. And estate planning -- planning for death and inheritances -- should be done very thoughtfully, to provide appropriately for both spouse and children.
Later in life, if one spouse needs to go to a nursing home and seeks support from Medicaid, then the other spouse's income and assets will be enlisted in covering the expenses. Some married couples actually divorce in order to deal with this. A specialized elder planning attorney can advise on these complex issues.
Generally speaking, who should marry and who should not?
The laws of marriage contemplate a couple coming together as young adults to build a shared life together, accumulate assets together, and raise a family. As such, the laws of marriage generally work well for people who are coming together to build a thoroughly shared life.
The laws of marriage can get particularly gnarly in the case of second marriages, or marriages in which one partner has children from a prior chapter of their life. In such cases, there are conflicting loyalties and obligations.
This doesn't mean that every young couple should marry and every older couple should not. Private planning, with wills, trusts, powers of attorney, insurance policies and financial management, can create a very solid structure for any couple in their particular situation. Individualized advice from skilled advisors can point you in the direction that is right for you.
When you marry, does your spouse automatically own half your property?
No, each individual can still own property in their own name, and property owned by both spouses can be owned in unequal proportions, if appropriately documented. This is all a function of ownership -- whose name is on the asset.
In the event of divorce, there's an important distinction between Marital Property and Separate Property. This is a function of time -- whether the asset was acquired before or during the marriage. Generally, property owned by either spouse before the marriage is their own Separate Property, and all assets acquired during the marriage are Marital Property. This does not mean that Marital Property is co-owned by the spouses -- it can still be held in separate names or separate proportions. What it means is that in the event of a divorce, the whole category of Marital Property is subject to division between the spouses, in whatever manner a judge determines.
At all other times and for all other purposes, property can be separately owned or co-owned, at your discretion.
Note that the categories of Marital Property and Separate Property can be adjusted in a prenuptial agreement.
Note also that in this answer holds true in 41 states: Wisconsin, Washington, Idaho, Nevada, California, Arizona, New Mexico, Texas and Louisiana are "Community Property" states, where spouses' mutual property rights are different.
Can spouses sign things for one another?
No. It might seem like that's one of the benefits of legal effects of marriage, but it is not. Each individual remains a separate legal being, and as such only that person can sign documents and transact personal business in their name.
Spouses often own property together, such as a home or a joint bank account. For such assets, it may be possible for one owner to sign on behalf of both -- but sometimes it's still necessary for both sign.
The only time it's possible to handle someone else's affairs is if you have been appointed as their agent under a Power of Attorney (POA).
A Power of Attorney is crucial to enable personal business to be handled for someone who is injured, disabled, or simply unable to be someplace at a time when things have to get done. A simple example is if you miss a flight and can't get home until a day after some important document has to be signed or important bills have to be paid. A more extreme -- but very common and important -- example is if someone has a major injury or illness resulting in persistent brain damage or dementia. In such a case, it may be necessary to handle their personal business for years on end. This can only be done under a POA. If there is no POA, then a lengthy, expensive and onerous guardianship proceeding would be needed. It is only through a POA or guardianship that you can do this -- being the spouse is not enough.
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Same-sex marriage is legal now -- that means we're protected, right?
Yes, but only if you actually marry. It's remarkable how many people mistake the availability of marriage rights for actually having marriage rights. You only get the benefits of marriage if you get married.
Also, the exact nature of same-sex marriage rights may change over time, so stay vigilant and keep an eye on the news. In December, 2022 Congress passed the Respect for Marriage Act, providing significant protections for same-sex marriage. But many anticipate that the Supreme Court may make rulings in the coming years that could curtail marriage rights in many states.
Please look at our blog page for comments and updates on this subject.