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Married and dying without a will: Consider the potential problems

A lot of people put off estate planning or skip making a will because they assume that their spouse will get everything when they die anyhow.

However, that's not entirely accurate. When someone dies without a will, or intestate, the state takes over and decides how that person's property will be divided up.

In Arizona, if you're married, it works like this:

  • If you have a spouse and no children or children only from that marriage, your spouse will inherit everything.
  • If you have a spouse and children not of that marriage, your property will be divided into two categories: your own personal property and community property you shared with that spouse. Your spouse will only get half of your personal property and the children will get the other half of your personal property and your share of the community property.

If you don't already realize what a problem that could be for your survivors, here are examples that illustrate it:

1. Adam used to be married to Beth and raised her child, Cathy, as his own. Long after Cathy was an adult, Beth died, and Adam married Diane. When Adam dies intestate, Diane inherits everything.

Because Cathy isn't legally Adam's child, she has no rights to anything. If her relationship with Diane isn't good, she could be entirely shut out. For example, Diane might even refuse to give Cathy her own mother's wedding ring, which became Adam's when Beth died.

The whole mess could leave Cathy with deep emotional wounds that Adam never would have wanted her to have.

2. If Cathy was Adam's natural child, but he's now married to Diane, Diane will get half of Adam's personal items when he dies. The other half of Adam's personal property and Adam's share of the couple's community property will pass to Cathy.

That means Cathy and Diane -- who don't get along -- could suddenly find themselves co-owners of the home Diane is living in -- which is likely to leave Diane angry and upset. It could also put Cathy in the position of being able to force the sale of the house -- which could put Diane out of the home she expected to live in until she died.

All of these sorts of unpleasant scenarios can be avoided with a will. Don't let assumptions hurt your loved ones.

Source: Findlaw, "Understanding intestacy," accessed Sep. 15, 2017

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