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What About After Death: Wills 101 - IG Post

We Have to Talk About It...

Death is not new. Death is inevitable. However, for a multitude of reasons, we don't talk about it as a society. Oftentimes even mentioning death or planning for it triggers superstitious and angry responses from those around you. Polyamorous people are no different from their monogamous counterparts when it comes to not talking about death. Polyamorists need to be having estate planning discussions with their families - inclusive of their parents, children, partners, and guardians of their children or wards. Estate planning is not only reserved for the wealthy, the elderly, parents, or those with property. This thought process can wreak havoc on loved ones after someone has passed and they have nothing set up. Now add in polyamorous dynamics - shared resources and property, blended families with children, legal and symbolic marriages, investments, and more - it can get messy. Hence, polyamorous people must be deliberate in their estate planning.

You May Need a Will

If you do not have a will, the state law will decide what happens to your estate. For polyamorous people who are in multiple relationships (especially if you have a legal marriage), you should look into writing a will or updating your current one. You cannot assume your loved ones will follow through on your wishes, especially if they have the upper hand legally. The state will likely give all possessions to the legal spouse if you are legally married. So if you have other spouses or are no longer with your legal spouse and in other committed relationships - this can be a severe issue. It is a disservice to your loved ones to not take the time to write a will AND get it witnessed, notarized, or whatever is necessary for your state to recognize it as a legal document. You are not protecting your partners by assuming a legal spouse will delegate everything fairly.

Types of Wills

  • last will and testament aka simple will - a legal document outlining whom you want to have your property and assets after you die - used to name guardians for children (or pets)

  • living "will" - a legal document that goes into action when you are unconscious, incapacitated, or unable to communicate. for end-of-life treatments (or lack thereof) - also, see advance directives

  • mirror wills - identical wills made by married couples or life partners, leaving everything to each other

  • joint wills - couple makes the will together, a single document, and signs it together. once one has passed, this document still cannot be changed

  • nuncupative wills, aka oral wills - last wishes made orally or on the "deathbed." legal validity varies from state to state

  • testamentary trust will - when some of your assets are placed into a trust for your beneficiaries and managed by a trustee. there can be conditions set to be met by the heirs to receive parts or all of the trust (age, college education, etc.)

  • holographic will - a will handwritten, dated and signed by you.

Make It Legal

This may take a little work on your part but do your research. Find out what steps you need to take in your state to recognize your will as a legal document to be upheld after your death. Generally speaking, you will need an executor who will read your will and carry out your wishes. Many states require a self-proving affidavit to be signed by a witness and notarized. Each state has different laws, so if you have moved states, you may want to review any previously written wills.

Wills Can Be Contested

Unfortunately, just having a will does not mean it will not be contested in probate court. Probate court is when the judicial system oversees the validity and distribution of property from the deceased person. Your will can be contested by estranged family members or a legal spouse. Your will can be challenged if there is an assumption you were not mentally healthy or stable (disabled and elderly people are especially at risk of this assumption) or if the witness is a beneficiary.

Et Cetera...

If you can afford it, hire a lawyer/will writing service. People change when loved ones die - meaning, someone you thought you could trust to do the right thing (or not contest a decision) may do it anyways. Keep that in mind. Being anti-government isn't a good enough reason to avoid writing a will. The government can get involved and apply state laws to your belongings. Be fully aware of your state's next of kin laws. Symbolic spouses, non-biological children, and unadopted children may risk getting nothing if there is no will.

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