Ask the Expert: To what is fiancé entitled?
Karen E. Klein | E-mail questions to
Karen@KarenEKlein.com
October 4, 2008
The problem: I am a widow who's been living with my fiancé for
10 years. I own several properties titled solely in my name, some purchased
before we met and some after. My will does not name my fiancé as
a beneficiary, but I wonder: is he entitled to any portion of my assets?
The expert: Derrick Rubin, matrimonial and family law attorney, Wisselman, Harounian & Associates, Great Neck.
The rules: Common-law marriage was abolished in New York State in 1933,
so your fiancé isn't entitled to any of your assets under this
theory of law. However, he could sue under a "contract," "partnership"
or "equity" theory for an interest in your assets.
The strategy: If it's your intention, make clear in your will that
your fiancé is not entitled to your assets. If you are concerned
about him gaining control of your assets should your health deteriorate,
execute a durable power of attorney that appoints a trusted family member
to act on your behalf if you aren't able to make financial decisions someday.
How it works: If you don't marry your partner, he won't automatically
be entitled to share in your estate. If you do marry, upon your death
he'd be entitled to an "elective share" of the greater of
$50,000 or one-third of your estate, even if your will does not leave
him a penny.
New York recognizes common-law marriages contracted in another state or
country if the legal requirements there have been met. So if you and your
partner previously lived together in another state, and in that state
your relationship qualified as a common-law marriage, New York would recognize
the common-law marriage.
The results: Assuming you never marry your fiancé and weren't
in a common-law marriage elsewhere, he shouldn't automatically be
entitled to your assets. He could sue for a portion of your assets if
he made any economic and/or noneconomic contributions to your homes, such
as home improvements or design. He would have to prove any such entitlement
in court.
