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The Case Against Marriage
A Book in Progress by Glenn Campbell “Read it or weep!” Chapter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Production Notes This is a ROUGH DRAFT of a book that still needs a lot of work. I have set it aside for now but expect to come back to it later Your feedback is encouraged, but I recognize that the chapters don't yet flow together as they should. FamilyCourtGuy<at>gmail.com |
Death can be very inconvenient, especially for the person it happens to. No matter what you believe awaits you on the Other Side, it is clear that being dead greatly reduces your ability to interact with the world. You can rattle your chains and haunt your old house, but the chances of anybody listening and taking you seriously are very slim. It can be especially difficult to pass messages back to the living about what you want done with your estate and with the important projects you have been working on. Modern law and society expect you to have these matters settled before you depart this mortal plane.
If you are romantically bonded with someone and have lived with them for a while, chances are you want the bulk of your estate to go to them. There are two reasons for this. First, you want your mate to have the means to continue without you. For example, if you been sharing a house, and the house is in your name, you probably want them to have it so they can continue living there. Second, if your partner knows you better than anyone, they are best equipped to understand and implement your wishes. If they knew best what your goals were, they would probably be in the best position to carry them on.
It would be a great tragedy for your partner to be dedicated to you for years but have no control of your estate when you passed on. They would then be forced to negotiate with your parents, siblings or other relatives. Those are creatures of your past who might not agree with your current goals to the same extent your partner does. Control of your legacy might be diluted, and the goals you fought for while alive could be sabotaged.
Death benefits are one area where marriage makes things easy. If you are married, the law automatically assumes that your estate will go to your spouse. In addition, your spouse may continue to receive at least some of your retirement and pension payments, such as Social Security. If you remain alive but are unable to speak for yourself, your spouse has the greatest control over your care, and they would decide when to pull the plug after all hope is gone. Married people don't even have to make up wills, because all of these rights are automatically assumed under the law.
If you are not married to your partner, nothing is automatic and you must prepare for these circumstances with explicit legal contracts. Gay partners have learned how to do this in societies that don't allow them to marry, and heterosexuals would be wise to follow their lead. With the exception of certain retirement and employment benefits, there are no rights conferred by marriage that can't be accomplished by separate legal contracts.
You must have a written will if you expect your unmarried partner to receive any part of your estate, and you must have a living will for them to have priority in caring for you. Once you believe you are in a stable relationship with someone, making up mutual wills should be one of your first legal steps together. You could even make a ceremony of it! (Instead of "'Till death do you part," you would be saying, "In death we will be joined.")
One benefit of having a will but not being married is that your surviving partner can receive your assets but doesn't have to accept any liabilities beyond the value of your estate. If you rack up huge uninsured medical bills in your final days, your married spouse would be responsible for paying them after your death. Your unmarried partner would not be. Likewise, if you were the subject of a lawsuit at the time of your death, the estate might bear continued liability, but your partner would not. If you bequeath something to your partner that is more an asset than a liability—like a heavily mortgaged house that needs repairs—your partner has right to not accept it.
Retirement benefits are more problematic. Social security and most private pension benefits are transferrable only to married partners. Battling on the front lines, gays are making inroads in some states and countries, but federal benefits in the U.S. are unlikely to change soon. If you choose not to get married, you may have to face the fact that some of your partner's employment-related benefits may never be available to you.
A bigger question, however, is whether you deserve the retirement and employment benefits of your partner after they are gone. These benefits came about through their hard work, not yours. Pensions and employer-subsidized health insurance are the main tangible marriage benefits routinely denied to unmarried partners, but objectively these seem more like corporate fringe benefits than natural, inalienable rights.
If you and your partner have become financially interdependent and you have no great monetary assets to leave them, mutual life insurance policies may be the best solution. Your partner's grief over losing you might never be erased, but a big check can make many things easier. Grieving but rich beats grieving and destitute. Life insurance is especially important if you are raising children or have other joint projects together that you want to see continued.
Remember that legal responsibility for minor children is generally assigned by the birth certificate or adoption papers, not by the marriage contract. Whether you are married or unmarried, your legal and emotional obligations to your children remain the same, and you need to make provisions for them in case you pass on. These can include, in your will, an explicit statement of who you want your children to be raised by. This assignment isn't absolute, but it is usually given great weight by the courts.
Arranging to give your partner your assets after your death or incapacity is fundamentally different than irrevokably sharing them while you are both still alive, as in marriage. As long as you are conscious, you have the power and responsibility to control your own assets and negotiate their distribution. If you and your partner truly love and trust each other, you are automatically going to share what you have, no contracts required. Death is different in that all negotiating power between the partners is now lost, and your unspoken trust has little standing with the rest of the world. Now, the surviving partner is negotiating with courts, relatives, businesses and government agencies, and they need to have written evidence of the deceased's intentions.
Being dead has its advantages. Presumably, you will have no worries and eternity will be as painless as lounging on the beach in Fort Lauderdale. Your surviving partner, however, will have worries, and it is a measure of your love right now that you anticipate what they may be and prepare for them as best you can. If you care about how they feel right now, then you should also care about their feelings and well-being after you are gone.
A will is a relatively easy document to prepare. Do-it-yourself will kits are widely available and don't take long to complete—but you have to actually do it and not keep putting if off because you are both feeling healthy right now. Death and disability are notorious for turning up on your doorstep without an invitation.
Unlike marriage, a will is easy to revoke: You just tear it up or make up a new one to supercede it. You don't have to go to court or negotiate with your partner to dissolve a will; you just do it. If you remain unmarried, your assets remain yours to do with as you wish, before and after your death. Even if you are acting on whim, your decision to create or destroy a will is solely yours.
Of course, this could leave you vulnerable to your partner saying that you are the beneficiary of their will when it isn't actually true. You wouldn't run the same risk if you were married. If a married person cut their spouse out of their will then died, the spouse could probably seek redress through the courts, since there may be community property involved. The situation of the unmarried couple depends more on trust: You have to believe that your partner isn't deceiving you.
Proponents of marriage say that their institution is all about "trust," and indeed it is. If you don't trust your partner to do they they say they will and stick by you when times get tough, then you need to marry them to guarantee your rights.
Continued in Chapter 30
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