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How Marriage Can Affect Your Liability and Other Rights

Many people get married in the fall and the spring. Obviously, there is a laundry list of things to do.  Once the essential things are done, here is some food for thought as to areas of your life which can be affected by your marital status.

Common law marriage

Yes, this type of marriage was recognized by the Supreme Court of Pennsylvania. It involved the idea of a couple representing themselves as married. It is a fallacy that the couple had to live together for 7 or more years. The test had much more to do with how you held yourself out to others—as a single person or as a married person? A true common law marriage, in a state which recognizes it, is a marriage, just like a traditional marriage.  It is a fully legal marriage, for all intents, circumstances and purposes, in the minority of states which recognize it. It has merely been entered into, or formed, in an atypical, nontraditional way.  In other words, there is no marriage certificate issued by the state.  There may not have been a formal ceremony.  There need be no ceremony and no witnesses to the common law marriage; it is the mutual intentions of the couple and holding out that matters.  The parties must have intended their relationship to actually be, and to be viewed as, a legally sanctioned marriage as if a certificate had been issued by the state.

It was recognized in Pennsylvania, until Jan. 2, 2005.  As of that date, it was abolished. Common law marriages recognized prior to that date lived on.  But no new common law marriages could be formed as of Jan. 2, 2005.  The common law marriage was fraught with pitfalls.  A well to do man dies.  He leaves behind substantial government and private benefits.  His common law spouse claims them.  She has to prove she was his common law spouse.  She has no marriage certificate.  She has no witnesses to a marriage ceremony.  Is she truly the spouse of the well to do decedent, or does she have an ulterior motive?  What if there are two, or three, alleged common law spouses?  The PA Supreme Court was tired of the uncertainty and risk of fraud.  Such marriages after Jan. 1, 2005 were thus abolished, without exception.  Ten or fewer states still recognize common law marriage.

Managing Personal Liability

Being married can be a form of minimizing or managing personal liability.  For example, let’s say Joe drives in a grossly negligent fashion one night.  Joe accidentally kills Jan, a medical school student.  Jan’s estate sues Joe.  Joe had the state mandated minimum coverage of $15,000 with Insurance 4 Motor Trade in per person Bodily Injury liability coverage.  The estate is offered that sum immediately, but the estate does not accept such a paltry sum. It also wishes to sue Joe personally, as the grievous damages he caused far exceed $15,000 of insurance money.

The estate files a lawsuit.  It wins a judgment against Joe for $9 million.  Joe owns a home.  It happens to be a 7 bedroom mansion in Gladwyne.  It is worth $11 million.  However, Joe owns it as “tenants by the entirety” with his wife Sue.  They were married and bought the home long before the fatal accident caused by Joe.  Only those who are married can own property in this unique way, as “tenants by the entirety.”  It means each person has a right to the whole of the property.  They each own all of the home, not half of the home.

As such, while a judgment could be levied against the mansion, the Estate of Jan cannot take the home of Joe.  It cannot be seized by the Estate.  This is because that home is also the home of Sue, who owns it as a “tenant by the entirety.”  It cannot be divided.  Jan’s estate cannot take title to half.  This is because the entirety of the title is owned by Sue, as well as by Joe.  In a sense, this form of married-only joint ownership, allowed for married people only, insulates the personal and real property owned by Joe so long as it is titled as tenants by the entirety with his wife and so long as this was done before the loss occurred.

Moral of the story: if you trust your spouse enough to marry him or her, you may want to trust that person enough to put all of your valuable personal, and real, property in both of your names, and with title to it showing “as joint tenants by the entirety.”  Neither can sell it without the permission and written consent of the other.  However, it is also protected from the personal liability of one of the spouses, for a time.

Medical Reasons/Hospital Visits

Yet another benefit of marriage applies in the context of serious illness. Anyone who has had a sick person in a hospital knows that friends are not allowed into an ICU at a hospital. Hospital staff allow only those related by blood or marriage to visit someone who is seriously ill or recovering from a serious condition.  We do not profess to know the rules of the hospitals across PA. We merely say, as a general proposition, it is far more likely you will be able to visit your loved one who is seriously ill if you are his or her spouse than if you are merely his or her boyfriend or girlfriend.  Hospitals, like the law, attribute no weight or credit to the notion of boyfriend and girlfriend.

Finally, when it comes to “Living Wills,” really Advance Health Care Declarations, the input of a legal spouse will have far more weight and effect than the input of a cohabiting boyfriend or girlfriend, whose pleadings will likely have no input into the decision making process.  If a loved one needs to have an “artificially prolonged life or death” decision made for him or her, and there was no Advance Health Care Declaration executed, as in the case of Terry Schiavo, then the “testimony” of a spouse will be a significant factor. The doctors will listen to a spouse who says, “I know what she wanted, I am her husband.” This will be far more influential than, “I know what she wanted, I was her live in boyfriend.” Marriage even connotes certain rights in death, such as funeral choices and other morbid things we don’t like to think about.  However, in closing, a Will and Advance Health Care Declaration are necessities for the newly married couple as well.  Remember, “in sickness and in health….”

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