When you make your will, you should include your marital status or domestic partnership status. The law treats married people and registered domestic partners differently than other will makers. Rest assured however, that you will be able to leave your property in almost any way you please, regardless of your relationship status.
Are You Married?
You probably know your relationship status. However, if you are separated, have filed for divorce, or have a same-sex partner, the answer may not be clear. Here are some issues to consider.
If you’re not sure whether or not you are legally divorced, make sure you see a copy of the final order signed by a judge. To track down a divorce order, contact the court clerk in the county where you believe the divorce occurred. You will need to give the first and last names of you and your former spouse and make a good guess at what year the divorce became final. If you cannot locate a final decree of divorce, it is safest to assume you are still legally married.
If the divorce was supposed to have taken place outside the United States, it may be difficult to verify. If you have any reason to think that someone you consider to be a former spouse might claim to be married to you at your death because an out-of-country divorce was not legal, consult a lawyer.
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Many married couples, contemplating divorce or reconciliation, live apart from one another, sometimes for several years. Although this often feels like a murky limbo while you are living it, for will-making purposes, your status is straightforward: You are legally married until a court issues a formal decree of divorce, signed by a judge. This is true even if you and your spouse are legally separated as declared in a legal document. Note that many separation agreements, however, set out rights and restrictions that may affect your ownership of property.
Common Law Marriage
It is uncommon to have a common law marriage. In fact, in most states, it is impossible to create a common law marriage. But in a few states, couples can become legally married if they live together and either hold themselves out to the public as being married or actually intend to be married to one another. Once these conditions are met, the couple is legally married. And the marriage will still be valid even if they later move to a state that does not allow couples to form common law marriages there.
No matter what state you live in, if either you or the person you live with is still legally married to some other person, you cannot have a common law marriage.
If you think you may have entered into a common law marriage, you may want to consult a lawyer to determine the legal status of your relationship. There is no such thing as a common law divorce; no matter how your marriage begins, you must go through formal divorce proceedings to end it.
Learn more about Common Law Marriage.
If you are a member of a same-sex couple, you should acknowledge your relationship status in your will. If you and your partner are married and you live in a state that allows same-sex marriage, your relationship status will have the same effect on your estate as if you were a heterosexual married couple. If you and your partner aren’t married, but you have registered your relationship with your state (as domestic partners or civil union partners), then your relationship status may also have significant bearing on the division of your estate.
Learn more about the importance of Indicating the Status of Your Same-Sex Relationship in Your Will.
Make a New Will When Your Marital Status Changes
You should make a new will whenever you marry or divorce. If your marital status changes but your will does not, your new spouse or ex-spouse may get more or less of your property than you intend. For example, if you remarry after making a will and do not provide for the new spouse—either in the will or through transfers outside the will— your spouse, in many states, may be entitled to claim a big share of your property at your death.
Also, if you name a spouse in a will, then divorce or have the marriage annulled and die before making a new will, state laws will produce different, often unexpected, results. In most states, the former spouse will automatically get nothing. In other states, the former spouse is entitled to take the property as set out in the will. In a few states, registered domestic partnerships provide the same rights and responsibilities as marriage. In those states, changes in your partnership status may affect the distribution of your property. Therefore, like married folks, you should make a new will whenever your domestic partnership status changes.
Learn more about Making a Will on Nolo.com.