Same-sex spouses and partners in Wheaton have been able to take advantage of opportunities in estate planning for several years now, but many are unclear about how their relationship affects the probate process. In some cases, the outcomes depend on the legal formalities of the relationship between the parties, whether marriage, civil union, or another type of arrangement.

While laws clearly grant certain rights to same-sex spouses, the standing of a couple’s children may be less clear. Those needing assistance with the Wheaton probate process for same-sex spouses are advised to consult an experienced probate lawyer familiar with same-sex legislation and interpretations.

Probate at a Glance

The goals of the Wheaton probate process for same-sex spouses are straightforward. However, the path to fulfill those goals could become quite complex. Probate is laced with legal requirements to ensure that dealings are fair and above board.

During the probate process, the court oversees the “estate” left behind by a deceased person. An estate simply refers to all the assets and debts left behind when someone dies. Requirements are in place to ensure that the decedent’s debts are paid, tax liability is satisfied, and remaining assets are distributed in accordance with the will. If there is no will, the process is similar, but in the end, property is split up according to the laws of intestate succession.

Determining What Process to Use

In some cases, an estate could be settled using affidavits rather than formal probate. Therefore, the first step in the Wheaton probate process for same-sex spouses is to determine whether the estate is a “small estate” eligible for an expedited method.

Many assets may not actually be part of an individual’s estate, so someone with a lot of property may leave behind an estate that could be administered through the affidavit process rather than formal probate. If property is owned jointly with another or passes through a beneficiary designation, then it does not generally become part of the estate for probate purposes. For example, a house owned with a same-sex spouse as a tenants by the entirety pass directly to the other spouse and not go through probate. Estates with a value not exceeding $100,000 may be administered through affidavits rather than formal probate.

Steps in the Probate Process

If the deceased person in Wheaton left a will, that document should be filed with the clerk of the circuit court. The person who intends to serve as executor or personal representative to manage the affairs of the estate needs to prepare and file several documents and take steps to give notice to creditors and those named in the will as well as those who would be entitled to inherit under the law if there was no will.

With same-sex married couples as well as opposite-sex couples, when an individual dies without a will, the spouse is entitled to inherit at least half of the property in the estate. If the deceased person leaves a spouse but no children, then the spouse would receive all the property in the estate. When there are children, they inherit half and the spouse inherits half. Provisions in a will may distribute property differently, which is why the probate process allows heirs the opportunity to contest a will if they believe it is not valid.

After notification procedures have been completed, the Wheaton probate process for same-sex spouses continues with payment of debts. When all creditors have had the legally allotted time to make a claim, if there are assets remaining, the executor then distributes those in accordance with the terms of the will or law.

Help with the Wheaton Probate Process for Same-Sex Spouses

In many cases, the Wheaton probate process for same-sex spouses is regarded as the same as for opposite-sex spouses. However, if the couple had a civil union rather than a marriage, the rights of children may not be as clear.

Probate is a process that is often complex and confusing. Many people find it helpful to work with an attorney who could manage an estate through probate proceedings to ensure that requirements are fulfilled in accordance with the law.

During the COVID pandemic the Estate and Probate Legal Group will remain open to help you protect your family. Please see this page for specific actions to take