You may think that if you die while you are married, everything you own will automatically go to your spouse and children. But you are actually thinking of state rules that apply if someone dies without leaving a will. In legal jargon, this is referred to as dying intestate. In that case, the specifics will vary depending on your state’s law, but generally, your spouse will receive a share of what you own, and the rest may be divided among your children or parents, depending on your situation. Exactly how much your spouse will inherit depends on the state law, though.
Now, it may seem like so far, so good.
Your spouse is getting an inheritance, and so are the kids. But here are some examples of how the laws can fail in many common family situations.
First, when it comes to who will get your money and property, most states’ laws presume that a family comprises a married couple and their biological children. But because that is not how many families are structured, things can quickly become legally complicated.
For example, Carey and Blake each have a child from a prior relationship (Carey has a daughter, Rose; Blake has a son, Whitley) living with them full time. During the course of the marriage, Carey and Blake have a child together named Penny. Carey and Blake treat all three children the same. Yet when Carey dies without a will or trust, her family must rely on state law to determine who receives Carey’s assets. Everything that was owned solely by Carey is divided between Blake, Rose, and Penny. Although treated like a son, Whitley would be entitled to nothing. This may not be the outcome Carey would have desired. Without an estate plan, however, nothing more can be done. With a will or trust, you can control what happens to your money and property and who will benefit from your hard work, essentially eliminating the risk of regrettable results.
Furthermore, if both parents of minor-aged children die without an estate plan, then the children are left without a legal guardian. Kids do not automatically go to a godparent or grandparent, even if that is what everyone knew the parents had intended. Instead, a court will appoint someone to be the children’s guardian. In such situations, the judge seeks to act in the children’s best interests and gathers information on the parents, the children, and the family circumstances.
But the decision is up to the court; the judge, following the priority listed in the state’s law, may not choose the person that you, as their parent, would have chosen. If you had created a valid will during your lifetime, you would have been able to communicate to the judge whom you would have liked to appoint as guardian.
The best way to safeguard and pass along what you have worked so hard to build is to talk to a qualified Oklahoma estate planning attorney.