International Estate Planning - A Reference Guide - Looseleaf
International Estate Planning - A Reference Guide - Electronic
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.
12.1 Overview of Issues
12.2.1 Traditional Definitions of Marriage
220.127.116.11 English Law
18.104.22.168 French Law
22.214.171.124 The Philippines
126.96.36.199 Quaker Weddings
188.8.131.52 American Indian Marriage
184.108.40.206 The United States
12.2.2 "Common-Law" Marriages
12.2.4 Same-Gender "Marriages"
12.2.5 Destination Weddings
12.3 Marital Property
12.3.1 Community Property Regimes
12.3.2 Separate Property Regimes
12.3.3 Religious Property Regimes
12.3.4 Choice of Marital Property Regime
12.4 Pre-Marital Contracts
12.5 During the Marriage
12.6 Elective Rights Post-Death