Why Common Law Couples Need an Estate Plan

Out of Wedlock and Out of Luck: What Happens When Common-Law Couples Lack an Estate Plan?

Common Law Couple Estate PlanningAlthough registering a marriage is still a common practice, the level of common law marriages, where there is no such recording with a state or religious registry, has increased over time as more states have begun recognizing them. Nevertheless, more than 75% of US states do not currently recognize common law marriages, and children born to couples who do not record their marriage in a registry are considered to be born out of wedlock. With this in mind, it’s important to consider what will happen to such couples in the unfortunate circumstance where one of the spouses passes away without having prepared the appropriate estate planning documents.

What happens when a spouse in a common law marriage passes away without a will?

In accordance with New York Intestacy Law, if an individual dies without leaving a will, said person’s estate shall be distributed in the following manner: first, $50,000 and ½ of the remainder to the surviving spouse, then the rest to the surviving children in equal shares. If there are no children, the spouse inherits the entirety of the decedent’s assets. However, in the case where the couple in question is not legally married, the estate administration process may become significantly more challenging.

New York is one of the several states where common marriages are not legally accepted. As a result, in cases where no estate planning occurs, the common-law spouse will be left out during estate distribution and will have no rights to claim his or her share as they are legally not related to the decedent.

Can children claim their inheritance if their parents were in a common law marriage?

In accordance with the law, if the decedent is not survived by a legally recognized spouse, the whole estate is distributed among the decedent’s children.  Children that were born during legal marriage do not need to prove maternity or paternity, as their birth certificate is enough to validate the relationships with the decedent. Children who were born out of the wedlock or during a common-law partnership have to provide additional proof, however, especially if the decedent is the father of the children in question.

The process becomes even more cumbersome if the children are minors. The surviving partner or the legal guardian of the child or children have to obtain the guardianship of the property of the children and only then file the petition for administration of the estate of decedent.

All of these steps are very time consuming and may become a source of permanent stress for a person who is not professionally involved with estate administration. It may take more than a year to obtain the Letters of Administration, and even then, in case involving common-law marriages, this may not be the end of the journey. Once the Letters of Administration are issued, the appointed administrator may not be able to use or distribute the estate, as the Court may constrict the administrator’s rights to only investing and re-investing the estate funds for the benefit of the decedent’s minor child or children. In this case the responsibilities of the estate administrator will continue until the minor distributees reach the age of majority. During this time the Court will likely closely monitor the estate administrator by requesting annual accounting reports to be filed with Court and requiring each action taken by the estate administrator to be approved by Court.

At the Law Office of Inna Fershteyn & Associates, P.C., we will help you plan your estate and draft the documents necessary to avoid the precarious situation described above. We will provide the necessary continued support during the ensuing years to make sure your plan stays up to date and in accordance with the current law.