By: Cheryl A. Jones, Esquire
Statistics show that more than 50% of Americans die without having a Last Will and Testament. People tend to put off this important planning because they are either procrastinators (“I’ll worry about it later!”) or misinformed (“I don’t need a Will because my spouse/partner will get everything when I die.”) The consequences of this can be dramatic, whether you are a wealthy celebrity (look at the tabloid stories about Prince!) or just an “everyday Joe.”
If you die without a Will in Maryland, then you are considered intestate, and Maryland’s intestacy laws determine what happens to your property. The intestacy laws are designed to protect your family members – first your spouse and children, then your parents and other extended family members. Often, however, what happens under these laws might not be what you expect – or what you might want for your loved ones. Here are a few key points:
Without a Will, your Unmarried Partner Inherits Nothing from Your Estate.
Unfortunately, your unmarried domestic partner is not considered family under Maryland’s intestacy laws. So, if you die without a Will, your partner has no right to any assets that flow through your estate (such as a house, car, business, or bank accounts that you own in your own name), or any portion of your life insurance proceeds or retirement assets payable to your estate, no matter how long you’ve been together and no matter what you intended.
This can be devastating for a surviving partner, both emotionally and financially. Imagine losing your partner, only to be told that you won’t be receiving any portion of his or her estate – including the home you’ve lived in together for decades, or the retirement assets that you were counting on for your own financial security.
Even if You are Married, Your Spouse May Not Inherit Everything
Marriage doesn’t necessarily solve the problem for your spouse. That’s because if you die without a Will, your spouse has to share your estate with your children who survive you. If you have minor children who survive you, then your spouse will only receive 1/2 of your estate, and your children will be entitled to the other 1/2. If you have adult children who survive you, then your spouse receives the first $15,000 of your estate and 1/2 of the balance, while everything else goes to your children.
What if you have no children or other descendants who survive you? Then your spouse still has to share your estate if either or both of your parents survive you. Under those circumstances, your spouse will inherit the first $15,000 of your estate and 1/2 of the balance, and the other 1/2 will pass to your parents.
Sound complicated? It is. Now imagine how much more complicated it becomes when:
- The relationships between your family members isn’t so great. Don’t fool yourself into thinking that after your death old hurts and rifts will suddenly be healed and the family will all share nicely with each other.
- Your parents are in a nursing home receiving Medical Assistance benefits at the time of your death. If they inherit from your estate (because you die without a Will and have no children who survive you), then your parents will have to immediately pay that inheritance to the nursing home, or risk losing their Medicaid benefits. Is that really what you want to happen?
- Your 18-year old son or daughter inherits almost 1/2 of your estate and can do anything he or she wants with those assets, without anyone’s permission or oversight.
- You have a stepchild that you want to treat exactly the same as your biological children, but because you died without a Will, your stepchild will only inherit if you have legally adopted him or her, or if you have no spouse or other blood relatives – children, grandchildren, parents, aunts, uncles, cousins, and any other descendants of your grandparents – who survive you.
Of course, there’s an easy solution to these problems, which is to prepare a Will. Besides protecting your partner/spouse, a Will can help you structure inheritances for family members, address any death taxes that might arise, and ensure that your estate passes the way you wish.
Cheryl A. Jones is an attorney at Pessin Katz Law, P.A. (PK Law), whose practice includes estate administration, estate planning for same-sex couples, second parent adoptions, and other family building issues. Cheryl can be reached at 410-769-6141 or firstname.lastname@example.org.