I’m Getting Married – How Does This Impact My Estate Plan?
By Joe Busnengo, Attorney At Law
Any time you have a substantial change in your life’s circumstances, whether that be marriage, divorce, the birth of a child, moving to another state or something else, it’s a good idea to sit down and review your estate plan with an attorney.
In this blog post, we’re going to focus on marriage as it relates to estate planning and what the implications of saying, “I do,” might be down the line for you and your spouse.
When should you talk to an attorney about an estate plan?
Before or after your wedding day?
The answer may surprise you – with some exceptions in which people need to address estate planning before the wedding, we’d usually recommend that you wait until you are actually married and then come in with your spouse to talk. That’s primarily because it makes life a lot easier if spouses estate plans are designed with each other in mind. At that point, we’re creating documentation in a joint manner that reduces misunderstandings later on. You’re helping to ensure your plans are working the way both you and your spouse want them to.
Generally, if someone does pass, it's much easier if their estate plans were worked out in concert with each other.
Of course, you and your fiancé are welcome to inquire about estate planning before the wedding – but know that it’s a distinct possibility that we may suggest that you wait until after your wedding day to engage in estate planning.
The Importance of Prenuptial Agreements
If you are getting married and planning on doing a prenuptial agreement, it can make a huge difference in what your rights are and as far as what you’re required to do with your estate plan.
There are a number of rights that a spouse has when their spouse passes away. One of the things you can do is commonly called setting aside the will (technically referred to as “renouncing” the will). What this means is that if you don't like what your spouse's will says when they pass away, under Illinois law, you can set it aside. Now, to be clear, that doesn't mean it gets totally ignored – which is what it sounds like. What it does mean is you get an automatic certain percentage of their estate from setting the will aside. If you have a spouse and no kids, that proportion is 1/2. If you have a spouse and kids, it's 1/3.
The rest of the property then goes through the will – except anything you would have gotten under the will, you don't get anymore because you’ve decided to set it aside. In a prenuptial agreement, you can agree to give up your right to set aside the will.
In addition, there is what's called a spouse’s award. When your spouse passes away, you’re automatically entitled to a certain amount of money out of the estate that is intended to cover living expenses for the first nine months (i.e. a gift of $20,000 you’re entitled to unless you can convince a judge that you should receive more). Here, you can choose to give up your right to receive a spousal share through a prenuptial agreement as well.
In reality, prenuptial agreements are far more common for second marriages than first marriages, which is why our next blog post is going to dive even deeper into how a previous divorce can impact what you must do in your estate planning.
Often when it’s your first marriage, estate planning may feel like a concept that should occur much later on in life, but that’s not really the case. It’s a good idea to have an estate planning attorney like our team at Miles & Gurney explain to you all of the essential considerations – again, preferably after you are married – so you can design a plan jointly with documentation that reflects both you and your spouse’s wishes. Then, when you need to make any changes over time, we can work with you to discuss when, where and how those adjustments should be made.
If you’ve recently tied the knot, start your estate planning conversation with Miles & Gurney today at 312.929.0974.
Joe Busnengo practices in the areas of probate, family law, and estate planning. While a student at Northwestern University School of Law, he gained experience with family law as an extern at Chicago Volunteer Legal Services and with probate and estate planning as a clerk at Prather Ebner LLP. Since graduating and being admitted to the bar in 2013, he has represented clients in adoption, divorce, and estate planning matters through Chicago Volunteer Legal Services and Wills for Heroes. He is currently a member of the Chicago and Illinois State Bar Associations and serves as co-chair of the CBA YLS Public Outreach—Wills for Heroes subcommittee.