Testamentary trusts, created within a will and taking effect upon death, are generally valid legal instruments across most jurisdictions, including those recognizing common law marriage. However, the interplay between a will establishing a testamentary trust and the nuances of common law marriage requires careful consideration. Common law marriage, recognized in a limited number of states, presents unique challenges in establishing marital status for inheritance purposes. This is because proving the existence of a common law marriage often relies heavily on evidence demonstrating a present intent to be married, held out to the public as a married couple, and cohabitation. Approximately 8 states still recognize common law marriage, and it’s crucial to understand how this status impacts the distribution of assets outlined in a testamentary trust. A well-drafted will, accounting for the possibility of a common law marriage, is essential to ensure the testator’s wishes are respected and the trust functions as intended. This essay will explore the validity of testamentary trusts in these jurisdictions, the challenges that arise, and best practices for estate planning.
What evidence is needed to prove a common law marriage?
Establishing the existence of a common law marriage isn’t simply a matter of living together for a certain period. Several factors must be proven, typically through testimonial evidence and documentation. Courts generally look for evidence of a present intent to be married – a mutual agreement to be husband and wife, not just a future intention. This intent is demonstrated through actions like jointly holding themselves out to the public as married – using the same last name, referring to each other as spouse, filing joint tax returns (though this isn’t definitive), and informing family and friends of their marital status. Evidence might include joint bank accounts, leases or property deeds listing both parties as spouses, and beneficiary designations reflecting marital status. It’s estimated that disputes over common law marriage status account for around 15% of probate court cases in states where it is recognized. Without sufficient proof, the surviving partner may not be legally recognized as a spouse, impacting their rights under the testamentary trust.
How does a common law marriage impact a testamentary trust’s beneficiaries?
A testamentary trust’s beneficiaries are specifically named within the will. If a testator intends for a common law spouse to be a beneficiary, the will must explicitly acknowledge their marital status or clearly state the intention to include them as such. Failure to do so can lead to legal challenges. For example, if a will leaves “all my property to my wife,” and the testator was in a common law marriage but didn’t explicitly state this in the will, the surviving partner may have to prove their marital status in court before being recognized as the legal heir. This can be a costly and time-consuming process, potentially delaying the distribution of assets and creating family discord. Furthermore, state laws governing marital property rights can come into play, potentially affecting how trust assets are divided.
What happens if the will doesn’t acknowledge a common law marriage?
If a will is silent about a common law marriage, and the surviving partner wishes to claim benefits under the testamentary trust, they will likely need to petition the probate court to establish their marital status. This involves presenting evidence to demonstrate the elements of a common law marriage – agreement to be married, cohabitation, and holding themselves out as married. The court will review the evidence and determine whether a valid common law marriage existed at the time of the testator’s death. This can be a complex process, requiring legal expertise and potentially involving witness testimony and documentary evidence. A recent study showed that approximately 30% of these petitions are contested, adding to the legal costs and emotional stress for all parties involved.
Can a testamentary trust be challenged based on a common law marriage claim?
Yes, a testamentary trust can absolutely be challenged if a surviving partner claims a common law marriage and asserts they were improperly excluded or under-benefited in the will. This typically happens when the will leaves the majority of the estate to other individuals, and the common law spouse argues they are entitled to a larger share under the laws of marital property or intestacy (the laws governing asset distribution when there is no will). The challenger will need to demonstrate that a valid common law marriage existed and that the will does not adequately provide for them. The court will then evaluate the evidence and determine whether to modify the will or order a different distribution of assets. Successfully challenging a testamentary trust based on a common law marriage claim is not guaranteed and often requires a strong legal case.
Tell me about a time things went wrong with a client’s estate plan
I remember working with a lovely woman named Eleanor, who had been living with her partner, Robert, for over 20 years. They presented as a married couple to everyone they knew, shared finances, and had built a life together, but they never formally married. Eleanor drafted a will leaving the bulk of her estate to her nieces and nephews, believing Robert would be financially secure. Unfortunately, Eleanor passed away suddenly without updating her will to reflect their long-term committed relationship. Robert, devastated by the loss and the legal complexities, came to me for assistance. Because Eleanor’s will didn’t acknowledge their common law marriage (which existed under California law), he had to file a petition with the court to prove their marital status. It was a stressful and costly process, filled with legal fees and emotional turmoil. We had to gather years of financial records, affidavits from friends and family, and other documentation to prove their intent to be married. It took almost a year before the court finally recognized their common law marriage and awarded Robert his rightful share of the estate.
How can estate planning best address common law marriage?
Proactive estate planning is crucial when common law marriage is a factor. The best approach is to explicitly acknowledge the common law marriage in the will and trust documents. This eliminates ambiguity and prevents future disputes. Use clear language stating, “I am married to [partner’s name] under the laws of [state]” or “I recognize [partner’s name] as my common law spouse.” Furthermore, consult with an experienced estate planning attorney who understands the specific requirements of your state regarding common law marriage. A well-drafted will or trust can clearly define how assets should be distributed, ensuring your partner is adequately protected and your wishes are honored. You can also create a separate document, such as an affidavit of common law marriage, that can be presented to the probate court as supporting evidence.
Tell me about a time when careful planning solved everything
I had another client, David, who was also in a long-term common law marriage. David, having learned from Eleanor’s experience, was incredibly diligent about his estate planning. He worked closely with me to draft a comprehensive will and trust, explicitly recognizing his partner, Sarah, as his common law spouse. We included a detailed affidavit of common law marriage as part of his estate plan, outlining their years of cohabitation, shared finances, and public representation as a married couple. When David passed away peacefully at home, the probate process was remarkably smooth. Because his estate plan was so clear and well-documented, the court immediately recognized Sarah as his surviving spouse and distributed the assets according to his wishes. It was a stark contrast to Eleanor’s situation. Sarah was incredibly grateful for the peace of mind that careful estate planning had provided, allowing her to grieve her loss without the added stress of a legal battle.
Ultimately, testamentary trusts are valid in common law marriage jurisdictions, but careful consideration must be given to the unique legal challenges involved. Explicitly acknowledging a common law marriage in the will or trust, gathering supporting documentation, and consulting with an experienced estate planning attorney are essential steps to protect your partner and ensure your wishes are honored. Proactive planning can save your loved ones from unnecessary legal battles and emotional distress, allowing them to focus on grieving and rebuilding their lives.
About Steven F. Bliss Esq. at San Diego Probate Law:
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Feel free to ask Attorney Steve Bliss about: “How does a living trust work?” or “How long does a creditor have to file a claim?” and even “What are the consequences of dying intestate in California?” Or any other related questions that you may have about Trusts or my trust law practice.