It’s 2019 (or maybe even later by the time you read this)! Couples can live together and have children without the social stigma this carried half a decade ago. So… why get married? Since I’m no expert on this subject, I reached out to lawyer, client, and friend Sam Leven of The Baldwin Firm. to answer the question of the legal benefits of being married. This is based on U.S. law, so residents of other counties should check elsewhere.
“It’s hard to ignore that the modern trend is away from getting married – with some people deciding to simply cohabit for life. Sure, the laws that used to criminalize and punish these things have all been (rightly, if you ask me) struck down by courts – but even without those penalties the law still treats married couples better than unmarried ones. So, even if you do not want to make the big fuss and have the massive, expensive party, you may still want to tie the knot, at least as far as the law is concerned, and here are a few reasons why:
Property Ownership – If you own property with someone else, you typically are either “tenants at common” or “joint tenants.” Tenants at common tend to own various shares of the property, can sell their share of the property, and can have their share of the property seized by creditors. Joint tenants have a more complicated relationship, but a creditor of one joint tenant cannot take any of the property without providing some protection (usually in the form of a hearing) for the other joint tenant. However, there is a third category of ownership – tenancy by the entirety. When two people own property as a tenancy by the entirety, each is considered to own the entire property, so a creditor of just one of the owners cannot touch the property at all – because it is also owned by the other owner. Given the nature of this article you may have already guessed this – ownership of property as a tenancy by the entirety is only available to married couples. Oh, and as a tip to those getting married, or maybe those already married, you can usually have your joint bank account be held as a tenancy by the entirety too, but almost no bank does this automatically – once married (or if you are already married), you may want to call your bank and ask them about changing the title on your account to a tenancy by the entirety.
Joint Tax Filing – If you are married you get to file your taxes jointly, which provides a myriad of benefits – especially if one of you makes substantially more money than the other. The benefits frequently include higher deductions, higher credits, and larger tax brackets, frequently meaning your total taxes will be lower if you file jointly than they would be if you each filed as single.
Inheritance and Gift Taxes – If you are a particularly wealthy individual, you may be concerned about inheritance taxes. Even if not, if you want to transfer large amounts of money, you may be concerned about the gift tax limits. If you are transferring money to each other, however, then do not worry about it! If (and only if) you are married, you can leave all of your money to your spouse or give all of your money to your spouse completely inheritance and gift tax free. As an added bonus, if you leave your entire estate to your spouse, your spouse gets to double the estate tax exclusion when leaving his or her estate on to the next generation.
Social Security Survivor’s Benefit – While we are on the topic of death, here is an unpleasant thing to think about – what happens if your partner makes substantially more money than you do, when planning out your retirement you plan to heavily rely on your partner’s substantially greater Social Security benefits, and then your partner suddenly dies before even reaching retirement age? Well, the Social Security program has a survivor’s benefit whereby the deceased individual’s Social Security benefits can be passed on – but you cannot receive this benefit from your partner unless you were married.
Inheritance Protection – You might think a will is all you need to protect your ability to inherit from your partner, but sadly years of experience has told us otherwise. One of the difficult realities of life is that as you get older, your mind can become feeble, and you may well succumb to the influence of others. Our firm has been involved in several cases where lifelong partners were convinced at an old age by an unscrupulous person (usually a child from a prior relationship) to change their wills and exclude their partner. If you are married, however, you have some protection from this. A surviving spouse can claim what is called the “Elective Share,” entitling them to a share of the deceased’s estate even if they were excluded from the deceased’s will. This protection is unfortunately not available for unmarried partners.
Parenthood – Every state has a law on the books providing a legal assumption that when a married woman gives birth to a child, that woman’s spouse is the child’s other parent and is named on the birth certificate. In the post-Obergefell era, that presumption has even been extended to same-sex married couples. When a child is born to an unmarried woman, however, no matter how committed a relationship she might be in, there is no presumption of who the other parent is. Instead, to establish parentage, a legal procedure of some form will be necessary – depending on the state, it may require a formal documentation acknowledging paternity, a DNA test, or even a costly adoption proceeding. In many states, the other parent will not be put on the child’s birth certificate, and the other parent will have years of difficulty with schools, doctors, etc. proving parentage. This presumption is particularly important for same-sex couples – without the marital presumption being in place, the other parent will almost always need to formally adopt the child in order to be legally recognized as a parent.
Divorce – Now you might think that I am crazy for including this as a reason to get married – the cost and complication of divorce is half the reason people do not want to get married these days in the first place – but hear me out. Why do you think a divorce is so costly and complicated? It is because of all the rules and laws in place to protect you if you and your partner split up. For example, what if your partner is in the military and you follow him or her around from base to base and can never establish your own career while he or she keeps advancing in theirs? Do you think it is fair that if you split up, after you have supported your partner all through your time together, that partner has no obligation whatsoever to support you while you get back on your feet and try to get your own career going? Well, I am sorry to say that despite some publicity suggesting otherwise, “palimony” is not recognized pretty much anywhere. You will only be able to claim spousal support (alimony) if you and your partner were married. Or, let us say you had some bad credit and could not get approved for a loan, so when you and your partner bought a house together you put it in your partner’s name, even though the money to pay the down payment and pay the mortgage came from your joint bank account that included your income. If you split up and you are not married, you are out of luck – that money is gone. If you are married and you divorce, the house will be marital property, and you will be entitled to some of the equity in it. So, as strange as it is to say, the ability to rely on the protections of a divorce proceeding if you do split up is yet another good reason to get married.
Society may be ready for a world in which fewer people marry, and more couples simply partner for life, but the law is not ready for that world. The reality is, even with the old rules punishing unmarried couples gone, the law still treats married couples far more favorably than unmarried ones.”
Samuel A. Leven, Esq. is an attorney at The Baldwin Law Firm, LLC in Oakton, Virginia. Mr. Leven’s practice primarily focuses on family law, including divorce, support proceedings, adoption, and pre-marital agreements (sometimes called pre-nuptial agreements) and he serves clients all across Northern Virginia. The firm he works for, the Baldwin Law Firm, also handles estate matters (wills, estate planning, estate administration, etc.). You can read more about Mr. Leven and The Baldwin Law Firm at http://www.thebaldwinlawfirm.com.
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