Choosing Your Marital Status

When making your will with WillMaker, you may have some questions about how to choose your marital status. Here is some information that might help you make your decision.

Legal Marriages

To be legally married in most states, you must take part in a ceremony with a legal or religious official and then file a marriage certificate with state authorities.

A marriage lasts until a court annuls it or issues a final decree of divorce. If you're not sure whether or not you are 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 yourself and your former spouse and make a good guess at what year the divorce became final. If you cannot locate a final decree of divorce, it is safest to assume you are still legally married.

If You Are Separated

If you and your spouse are legally separated as declared in a legal document, you are still considered married for will-making purposes.

When making your will, you need not include your estranged spouse in any of its provisions. But beware that under some state laws, he or she may have a right to claim some share of your property if you die before the divorce becomes final. This emphasizes the importance of writing a new will when the divorce becomes final.

If you have questions about how your state's laws apply in this situation, consult a qualified estate planning lawyer.

Common Law Marriages

In a few states, couples can become legally married under the common law 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 does not 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 cannot have a common law marriage.

As you can see below, some states recognize common law marriages only if they were created long ago. If you live in one of these states and you entered into what you believe to be a common law marriage, 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.

States That Recognize Common Law Marriages

Domestic Partners

If you and your partner have registered your relationship as a domestic partnership, civil union, or reciprocal beneficiary partnership, choose "I have a registered domestic partner" and then identify which type of relationship you're in.

Unmarried Couples

If you are a member of an unmarried couple, choose "I am not married, nor do I have a registered domestic partnership." You and your partner can both make wills that leave your property exactly as you wish. This does not limit your ability to leave property to your partner or to name your partner as executor. You will have the opportunity to do both of those things as you continue to make your will.

Widows and Widowers

If you were married, but your spouse died (and you haven't remarried), then you may consider yourself a widow or widower. However, because you don't have a living spouse, for the purposes of will-making, you are legally "unmarried." While you won't be able to mention your deceased spouse in your will, if you wish, you can leave a tribute to him or her in a separate letter or note to your loved ones.

Leaving Property to a Spouse or Domestic Partner

Most states allow your spouse or registered domestic partner to claim a substantial portion of your property at your death -- either in your will or by some other estate planning device such as a living trust or a pay-on-death bank account.

If you are married or in a registered domestic partnership but do not plan on leaving at least half of your property to your spouse or partner, you may wish to review the law in your state before making your final will.

For help determining what you can leave to others, see Marriage Property Ownership: Who Owns What?.

If Your Marital Status Changes

If you are married and divorce, or if you are in a registered domestic partnership and you formally end the relationship, update your will to reflect your new status.

Similarly, if you are currently single but later marry or register your domestic partnership, make sure to prepare a new will and change your answer on this screen to match your new situation.

It is also important to update your will if your spouse or domestic partner dies before you do.

If you are separated but not yet divorced, answer that you are married on this screen. You are then free to leave your spouse property as you wish. Be sure to update your will as soon as you are divorced.