Making a Will: Indicate Your Marital Status

When you make your will, you should include your marital status or domestic partnership status. The law treats married people and registered domestic partners differently than other will makers. Rest assured however, that you will be able to leave your property in almost any way you please, regardless of your relationship status.

What Is Your Marital Status?

You probably know your relationship status. However, if you're separated, have filed for divorce, or have a civil union with a same-sex partner, the answer might not be clear. Here are some issues to consider.

Divorce

If you're not sure whether or not you're legally divorced, make sure you see a copy of the final order signed by a judge. To track down a divorce order, contact the court clerk in the county where you believe the divorce occurred. You will need to give the first and last names of you and your former spouse and make a good guess at what year the divorce became final. If you can't locate a final decree of divorce, it is safest to assume you're still legally married.

If the divorce was supposed to have taken place outside the United States, it might be difficult to verify. If you have any reason to think that someone you consider to be a former spouse might claim to be married to you at your death because an out-of-country divorce wasn't legal, consult a lawyer.

Separation

Many married couples, contemplating divorce or reconciliation, live apart from one another, sometimes for several years. Although this often feels like a murky limbo while you're living it, for will-making purposes, your status is straightforward: You're legally married until a court issues a formal decree of divorce, signed by a judge. This is true even if you and your spouse are legally separated as declared in a legal document. Note that many separation agreements, however, set out rights and restrictions that might affect your ownership of property.

Common Law Marriage

It's uncommon to have a common law marriage. In fact, in most states, it's impossible to create a common law marriage. But in a few states, couples can become legally married if they live together and either hold themselves out to the public as being married or actually intend to be married to one another. Once these conditions are met, the couple is legally married. And the marriage will still be valid even if they later move to a state that doesn't allow couples to form common law marriages there.

No matter what state you live in, if either you or the person you live with is still legally married to some other person, you can't have a common law marriage.

If you think you have entered into a common law marriage, you might want to consult a lawyer to determine the legal status of your relationship. There is no such thing as a common law divorce; no matter how your marriage begins, you must go through formal divorce proceedings to end it.

Learn more about Common Law Marriage.

Same-Sex Couples

If you're a member of a same-sex couple, you should acknowledge your relationship status in your will. If you and your partner are married, your relationship status will have the same effect on your estate as it would for a legally married heterosexual couple.

However, if you and your partner aren't married, but you have registered your relationship with your state (as domestic partners or civil union partners), then your relationship status might also have a significant bearing on the division of your estate. If you have any questions about the legal status of your relationship in your state, get help from an attorney who is knowledgeable about this area of law.

Widowed

If your spouse has died, and you haven't remarried, then you're considered unmarried. It might seem odd, and you might still consider yourself as married. However, in the eyes of the law, your marriage ended when your spouse died.

Make a New Will When Your Marital Status Changes

You should make a new will whenever you marry or divorce. If your marital status changes but your will doesn't, your new spouse or ex-spouse might get more or less of your property than you intend. For example, if you remarry after making a will and don't provide for the new spouse—either in the will or through transfers outside the will— your spouse, in many states, may be entitled to claim a big share of your property at your death.

Also, if you named an ex-spouse in a will and die before making a new will, state laws will produce different, often unexpected, results. In most states, the former spouse will automatically get nothing. In other states, the former spouse is entitled to take the property as set out in the will.

In a few states, registered domestic partnerships provide the same rights and responsibilities as marriage. In those states, changes in your partnership status might affect the distribution of your property. Therefore, like married folks, you should make a new will whenever your domestic partnership status changes.

Learn more about Making a Will on Nolo.com.