[YJKARIES]

I am divorced but we are together as a couple and have been since shortly after the divorce was final back in 1994.

Question, we own a house jointly and my husband has a 401K and we both have life insurance policies naming each other as beneficiaries.

If one of us is to die, and being that we put each other as beneficiaries for everything, do you forsee any problems with the payments or ownership of any of the above if one of us passes on before the other?
What about debt? Will the other person be responsible for debt that the other owes (unsecured)? I know if we get married that is probably the case but if we don't get remarried?

We do have two children, one is an adult but the other is still a teenager.

I ask because we are wondering if we should get remarried (we plan on staying together). We are in our mid-40s and live in NJ.

[CaptainForest]

If you are married, you are responsible for each other debts.

If you are not married, you will not be responsible for any of his debts when he dies.

However, what will happen is this:

All his assets will be sold and used to pay of his debts. If there is anything left, it will then go to you (as you are named in the will).

Furthermore, since you 2 are not married, your children could petition the court to get part of the estate as well. Will they win, I don't know, but they would have a case since you are not his wife, but rather an ex-wife.

Your best bet is to consult a lawyer in your local area for all the legal and tax ramifications of this.

[Fr_Chuck]

You will of course need a will, remember since you are divorced, the living children will have claim to rights under various state laws. So if they are not written into the will according to state law, they may have room to dispute any of the divisions of property to get their share.

For example, my mother and I are often on the outs, she has re-written her will several times putting me in or out. With out, she still leaves me something as required by law, may be 10 dollars and a lawn mower, but leaves me something. If she just left me out completely I could contest the will in the state she lives in.

Best bet, get an attoreny and/or an estate planner if the estate is large enough

[fredg]

Hi,
You have two good answers before this one.
I do agree with get a lawyer!
You both need Last Will's and Testaments.; drawn up by a lawyer; not one of these "do-it-yourself" deals... for your own personal peace of mind.
Best wishes.

[J_9]

I agree with everything that has been said so far. I would just like to add that in some states, here in the US, after you have lived together for a specific amount of time, divorced or not, you become Common-Law husband and wife.

Even if you do not get remarried this common-law relationship will most likely cause the living person to be responsible for any debts left behind.

[kp2171]

One issue with common law can be in some cases its not just time together. You need to have supporting evidence, as my understanding, that the deceased referred to you as wife or husband. I'm only working with second hand knowlwdge here, so you'll need legal counsel or advice from someone who knows better, but when my father in law passed this issue potentially came up with his live in girlfriend. Obviously a will could be supporting evidence of your intent. I don't know how your being married and then divorced and then together would be perceived. More reason to talk to a lawyer. We spent about $500 to get our wills put together, and it was good money spent for peace of mind. It might have been more expensive than others also because we needed some special trusts set up.

In this case she (gf) had referred to herself as wife though wed never heard him say this (though he did say hed never marry again, but hed never leave her either), and used this claim to get social security benefits, which my wife, his primary beneficiary, was fine with. She could have also made a claim to his 401k invenstments, as somehow there was NO beneficiary claimed (huge mistake that caused months of headaches)... which is where we would have had to fight her on the common law thing as his will explicitly stated the 401k was to go to my wife for the grandkids education. Anyway everything worked out without any fights, thank God.

But the points that you need a will and you need to carefully designate beneficiaries is absolutely true. We were trying to get the 401k directly without it going through the estate, which would subject it to unsettled debt, but that's not going to happen. So now there's a two year waiting period during which creditors who have been notified of his passing can settle the unsecured debt.

I'm on really shaky ground here, but I thought our lawyer said the house passes to whomever is designated outside of the estate. I know that sounds silly, and I'm going to check with my wife on that one... but I thought that was the case. He willed the house to his girlfriend and the house or proceeds from her selling the house is not being subject to the unsecured debt as I understand.

I was very surprised to hear about how the unsecured debt is handled. I assumed all contacted companies would immediately pursue the estate but so far after 8 months only one company has settled and it was for just over 12% of the debt. He was always financially responsible, so the amount of unsecured debt was a surprise, but the estate might not get hammered as much as we thought if the rest of the creditors follow the first.

[CaptainForest]

I agree with everything that has been said so far. I would just like to add that in some states, here in the US, after you have lived together for a specific amount of time, divorced or not, you become Common-Law husband and wife.

Even if you do not get remarried this common-law relationship will most likely cause the living person to be responsible for any debts left behind.

I looked into that.

New Jersey does not recognize common law marriage.

[J_9]

Oh, Ok, it was far reaching, but I lived in Michigan and at least they used to there.

Thanks for the correction, I will keep it in mind.

[CaptainForest]

The only US states that currently recognize common law marriage are:

Alabama
Colorado
District of Columbia
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Oklahoma( possibly only if created before 11/1/98. Oklahoma's laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
Rhode Island
South Carolina
Texas
Utah

Michigan got rid of common law marriages in 1957 according to what I read on the web.

[J_9]

Well, hubby and I were considered common law back in 1996, so we ended up getting married. May have been one of those blue book laws or something. Oh, well, I ended up getting him one way or the other right?

I am sure about Alabama, I am surprised not to see Arkansas or Tennessee on the list.

[CaptainForest]

I revised my previous post.

New Hampshire and Oklahoma, I have added some additional notes to them.

According to 2 different sources, Arkansas and TN do not recognize it.

[J_9]

Well, AR and TN are amazing cause they have a high number of cousins marrying brothers, or something like that LOL!!