“Do I need a will if I don’t have children?” The answer to this frequently Googled question might surprise you.
Indeed, married couples who do not have any children often think that there is no good reason to have a will in place. They mistakenly assume that a will is not necessary since there is no need to determine how any assets would be divided among children. Instead, these couples rest easy under the mistaken assumption that their property will always go to their spouse in the event of their death.
In reality, Houston couples who do not have children should still have a will in place.
This is because of the state’s intestacy succession laws, which come into play to determine the distribution of assets when someone dies without a will. Texas intestate laws dictate that assets will be distributed to surviving family members according to a standardized formula. The formula does not account for any personal wishes or even family conflict; if one’s estranged cousin is due a portion of the estate under intestate law, she will get it.
Child-free couples who choose not to execute a will often overlook several troubling scenarios that could occur under intestate succession—or in the event that the surviving partner does decide to write a will.
First, these couples often start with the risky assumption that they will not die together. Obviously, if both spouses die simultaneously, there will be no surviving spouse to inherit the other’s property. Instead, intestate laws will be applied to distribute assets to surviving family members without regard to the couple’s preferences. Therefore, it is critical that child-free spouses write wills that reflect their preferences for the distribution of assets in the event that they die together. Taking the above example, picking a second level of beneficiaries helps ensures that an estranged cousin will not receive one’s hard-earned assets.
Second, child-free couples often forget to plan for the distribution of assets that will occur after a surviving spouse dies. Similar to the above scenario, if a child-free couple fails to write a will, they take the risk of letting intestate law decide who ultimately gets their assets. More concretely, if spouse A dies before spouse B, it is wholly possible that only spouse B’s family would receive any assets – under intestate law following B’s eventual death—including spouse A’s precious family heirlooms. Why leave this to chance?
Finally, couples should keep in mind that a surviving spouse can legally modify any agreed-upon beneficiaries. In other words, if spouses A and B agreed to exclude estranged cousin C from their wills, spouse A could go back on that promise, naming cousin C as the sole heir following spouse B’s death. If a spouse wishes to prevent this potential outcome, then she can set up a revocable living trust. This instrument would allow the surviving spouse to use the deceased spouse’s share of assets during her lifetime, but not to modify the intended beneficiaries.
Clearly, every couple would be wise to discuss who should receive their property after both spouses have passed. Trusts and estates law firms can help child-free couples sort out these matters and more.
Schedule a Free Consultation With a Houston Estate-Planning Lawyer
If you are in a child-free marriage or long-term relationship, writing a will can help ensure that your final wishes will be honored after your death. The Houston estate planning law firm of McCulloch & Miller, PLLC has extensive experience in working with child-free couples to draft comprehensive wills and other legal instruments as needed. Every day, we help couples like you sort out their final wishes and then translate those wishes into airtight wills. With families of our own, we understand that these matters can be uncomfortable to broach. We, therefore, approach each case with sensitivity, reading each individual situation to gently guide couples toward peace of mind. Call 713-333-8900 to get started today with a free consultation.