International Estate Planning - A Reference Guide - Looseleaf
International Estate Planning - A Reference Guide - Electronic
►2015 News: The United States Supreme Court held
that marriage licenses cannot be denied to same-sex couples
by any state. (details below)
12.1 Overview of Issues
When a client is married it is essential to determine what rights, if
any, the other spouse has over the client’s property. This arises in several
areas. One affects the rights an individual married person may have with
respect to his or her property. This would include whether or not he or
she is free to dispose of that property. Stated another way, the advisor
must ascertain the nature and extent of the property to which the client
does have the legal right to make his or her own dispositions at death.
Surviving spouses often have rights to inherit as widows or widowers.
For all of these issues, the initial legal determination should be
whether or not someone will be recognized as a spouse. Finally, the
answer to any of these questions may unfortunately, in the author’s
opinion, vary according to the location of the court that is asked to make
any of these determinations. In part, this is because all of these issues
involve very strong public policies.
Looking at this from one perspective, the person with questions may
be the surviving spouse who is trying to collect a variety of death benefit
payments, either through a Will, or by “elective” survivor’s rights, or as
a beneficiary under life insurance contracts or retirement plans. If there
had been a subsequent marriage by the decedent, the validity of the prior
divorce (or divorces) is critical. If the divorce was valid, it usually
revokes any provision for that spouse in a Will. If the divorce was not
valid, the current spouse will not be treated as a legal spouse.
If a marriage is not valid, there is also the likelihood that any
children will not be able to inherit. When other countries, and even in
some cases other religions,1 are involved, it is not always easy to be sure
of a recognized marriage relationship.
We can begin with the “fact” of the marriage. Will it be recognized
as valid by the court that would have jurisdiction over the disposition of
property at death? There are certain well-known requirements in order
for a marriage to be valid, but these can vary by jurisdiction.2 Those
• Was either spouse too young to enter into a valid marriage?3
• Was parental consent required?4
• Was the kinship relationship one that prohibited a marriage?5
• If there was a prior marriage, will that divorce be recognized as
• Was there a domicile “waiting period” that was not met?7