Many people believe that if they are married without children, there is no need for a Will. They believe that if they die, all their assets will pass to their spouse. In Pennsylvania, that may not be true.
First let me give you some background. If you die a Pennsylvanian without having signed a Will, you are â€śintestateâ€ť, and the Pennsylvania Rules of Intestacy dictate who inherits your Probate Assets. Probate Assets are the things that you owned in your own name that had no beneficiary designations. Some assets, like life insurance and IRAs typically name a beneficiary. Those things pass to the beneficiary even if you have no Will. Other assets, such as real estate, bank accounts and cars typically do not have a beneficiary designation. Those are the assets that make up your Probate Estate; the assets that pass under your Will. If you have no Will, those Probate Assets pass under the Pennsylvania Rules of Intestacy.
If you died without children, married to a same-sex spouse and you have no Will, then your Probate Estate will pass as follows:
- If you die married to your LGBT spouse, but have no surviving parents, then your spouse inherits all your assets.
- If you die married to you LGBT spouse, but have parents that survive you, then
- Your spouse inherits the first $30,000.00 of your Probate Estate, plus Â˝ of the remaining assets.
- Your Parents inherit the other Â˝ of the remaining assets.
The presumption is that if you had no Will you meant to leave some of your estate for your parentsâ€™ care. This mistake can cause conflict, confusion and increase the cost of probating your estate
For example: George and Sam are married without children. Sam dies without a Will, owning a $630,000.00 home and survived by his mother. Sam had wanted George to live in the house until his death, but because he died without a Will, his mother forced the house sold. George got the first $30,000.00 and Â˝ the remainder and Samâ€™s mother took the other 1/2 remainder.
For example: Diane and Sarah are married without children. Sarah dies without a Will, owning several large investment accounts that have no beneficiary designation, and survived by her parents. The parents are divorced and dislike one another and neither parent cares for Diane. Both parents and Diane petition the Philadelphia Register of Wills to serve as the Administrator. Expensive litigation lasting months could follow at this point.
Both of these scenarios are avoided easily with a Will.
For example: The same George and Sam are married without children. Sam dies with a Will that gives all of his assets to Sam. Sam inherits the $630,000.00 home and Georgeâ€™s mother has no claim to the estate.
For example: The same Diane and Sarah are married without children. Sarah dies with a Will that gives each of her parents $20,000.00 and the remainder of her estate to Diane. The Will names Diane as the executor. Diane then files the Will, is named executor and the feuding parents have no claim to serve as executor. She gives the parents each a check for $20,000.00 and they have no further interest in the estate.
Having a Will completely avoids the Pennsylvania Rules of Intestacy. If you are in a same-sex marriage, donâ€™t let Pennsylvania determine where your assets pass, have our firm memorialize your wishes in a well drafted Will.
If you have questions about estate planning for LGBT couples, feel free to contact our office for a free consultation. Wills, Trusts and Estates, Itâ€™s all we do!