Each family is different and can be complicated in its own way. Two families blended together can increase the complexity of the relationships. Of course, the relationships within each family are unique and each family will establish its own way of communicating and the rules for its relationships. When two families come together, each member of the family will work out how to interact with the other members. This takes time and effort. If necessary, the family should seek professional assistance to help work through any issues.
Before Beginning, Understand the Rules
Every relationship has rules. The rules can be formal, informal or merely custom. In the United States, relationship rules regarding families, among people and to property are generally governed by the laws of the 50 states and the District of Columbia. As each state’s law is different, it is not possible to discuss them all here. However, before entering into a new (or different) family arrangement, you should consult an attorney in the state where you and your family intend to live to learn how that state’s laws will apply to your family.
Changing the Default Rules – Rules for Your Relationship
Many of the default rules regarding relationships can be modified by agreement. These agreements are binding contracts and should be treated like any other important legal transaction. Each person entering into the agreement should be represented by a separate attorney skilled in the law of domestic relations.
Depending on state law, rules that may be changed by agreement include support when a relationship ends, property division when a relationship ends and property division following death.
During Your Relationship
Spouses can agree as to how they will manage their finances and which spouse will pay which household expenses. Although such arrangements are usually informal, they can be formalized in a prenuptial or postnuptial agreement.
Generally, while married, spouses must financially support one another and their family by providing the necessities of life.
Traditionally, unmarried cohabitants were not in a recognized legal relationship and were considered legal strangers. Some states permit unmarried cohabitants to have property rights by contract. Nevertheless, because terms of implied contracts are difficult to prove in court, unmarried cohabitants should define their arrangement in a written agreement. Some states require such contracts to be in writing to be enforceable.
Parents must provide for their minor children. Many states require a stepparent to support minor stepchildren, notwithstanding that the stepchildren have not been adopted by the stepparent, if the stepchildren lack basic needs or require public assistance.
Consider the following with respect to the family’s financial arrangements before entering a new relationship:
- Discuss your thoughts about money and its management. Understand each other’s positions and determine in advance how disagreements will be resolved. Prepare a written agreement about money management (and amend it as necessary).
- Determine how property and debts brought into the relationship by each party (or acquired during the relationship) will be managed.
- Determine the amount of financial responsibility each person will have for the other’s children (children of both must be supported by both).
- Determine how household expenses will be paid.
- Understand the tax consequences of financial transactions between the spouses or cohabitants.
- Put your agreement in writing. Some states will only enforce written agreements. Consult a domestic relations lawyer in your home state to understand how the law will apply to your agreement.
Broadly speaking, during your relationship, your property rights depend upon whether you live in a common law state or a community property state and whether you are married or not.
If you live in a common law state, generally, your rights with respect to property depend upon how that property is titled (that is, who owns the property). Of course, you can give a spouse or cohabitant ownership rights to property in which you retain an interest, such as by creating tenancies-in-common, joint tenancies with right of survivorship and, only for married persons (although not allowed in every state), tenancies-by-the-entirety. Consult a lawyer for an explanation of the different attributes of such forms of ownership.
If you live in a community property state and are married, you may have rights to property acquired during your marriage no matter which spouse owns the property. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Other states allow you to elect to apply community property law to assets that meet certain requirements. The community property law of each state is different and nuanced. If you live in a community property state, consult an attorney skilled in domestic relations law to understand the laws of your state.
If you are unmarried, but cohabiting with another, your rights with respect to the property of your cohabitant may be limited. Some states permit unmarried cohabitants property rights by contract.
Nevertheless, because terms of implied contracts are difficult to prove in court, unmarried cohabitants should define their arrangement with respect to property in a written agreement.
Some states require such contracts to be in writing to be enforceable.
Consider the following with respect to property ownership and management:
- State your intentions and define your rights in a written agreement.
- For property that you own alone, have a plan should you become unable to manage such property. Consider creating a durable power of attorney.
- If you plan on unmarried cohabitation, create rules for your living arrangement. Those rules should be documented in a written cohabitation agreement.
- The creation of a co-tenancy may be treated as a gift to the new owner. If the donor and recipient are not married, the gift could be subject to gift tax (or if the transfer is deemed a sale, income tax).
- Understand the different types of co-ownership and the rights that each confers.
Healthcare Decision Making: States have enacted laws that allow you to create a document in which you can name one or more agents to communicate with your healthcare providers. Give careful consideration as to whom you name as agent under your healthcare document. For example, your spouse/cohabitant may disagree with your children regarding your care. Choose an agent who will follow your wishes and be sure to have an alternative agent in place in case the person named as primary agent cannot serve.
End of Life Decisions: States have enacted laws that allow you to create a document in which you can state your end-of-life decisions and can name one or more agents to communicate those decisions to your healthcare providers and others (colloquially known as a living will). Without a living will, non-family members, such as an unmarried cohabitant, could be excluded from decision-making, potentially excluding from the process the person who, perhaps, best understands your wishes.
Also, without a clear statement of your intent, it is possible that your family may be divided over decisions regarding your care, causing an irreparable rift over what is inevitably a very difficult and often heart-wrenching decision.
Define the Rules: Every relationship has rules. Consider defining the rules for your relationship. When making the rules, consider involving children who are mature enough to participate in the discussion. Of course, not all rules should necessarily be discussed with children (such as property rights and support). Nevertheless, consider stating clear operating rules for the family, such as “your stepparent is just like a parent” or responsibility with respect to chores. Each relationship is different, so each family’s rules will be different. Write the rules down in a “family constitution”. Perhaps, have children who are sufficiently mature, signify their consent by signing the document.
Family relationships are complicated. This is especially true when two different families are blended together and there are children from prior relationships as well as children from the current relationship. An attorney skilled in domestic relations law can help you understand your rights and responsibilities and what can be changed by agreement and what cannot.
For more information, please contact your PNC Private Bank advisor.