One question that may come up during the probate of an estate is whether the marriage license is a valid license, especially in a situation where children are challenging the will of a parent who remarried after their birth. Regardless of how long a couple was legally married, the death of one spouse triggers the spousal share laws.
Marriage License Reciprocity
In short, if the marriage was conducted and included a legal and registered marriage license in another U.S. state, then the marriage will be honored in Utah. If there’s a question of whether the license is valid, a records check in the jurisdiction that issued the marriage license will be able to produce a certified copy.
For destination weddings, where the couple elects to get a foreign marriage license rather than a Utah marriage license, the answer is a little trickier. As a general rule, Utah recognizes foreign marriages as long as they were legal in the country in which the marriage occurred. There are a few exceptions, such as when one party was still married and so not free to enter into the new marriage or one party was under the age of 16 or closely related. It may be a little more time consuming to produce a copy of the marriage license, but if it’s properly documented, it’s a valid marriage.
Utah Spousal Elective Share
Like many states, Utah has a provision that ensures surviving spouses will be taken care of when their partner dies. Unless the surviving spouse specifically waives their right to their share, then they have a right to a portion of the estate. If all children of the deceased belong to both the living and deceased spouse, then the surviving spouse is entitled to the entire spousal share of the estate. If there is a blended family, then the surviving spouse receives a portion of the spousal share.
As a general rule, the elective share is equal to one-third of the total value of the estate. But as indicated above, this is an oversimplification of the rule. The size of the estate, previous spouses, children, homestead, family allowances, and more can shift this equation. However, if there was a valid marriage, then the surviving spouse is entitled to some valuable portion of the estate, regardless of what the existing will states.
A surviving spouse does have the right to waive their elective share, and will often do so in a late-in-life marriage where both parties are financially comfortable. The decedent can also choose to provide for the spouse through non-probate assets such as life insurance and jointly held property, leaving their probate assets to the children. If you’ve recently re-married, it is a good idea to update your estate plan to take into account these new considerations. The experienced trust and estates planning team from Dunn Law Firm have helped clients craft their estates to handle a wide variety of goals, family structures, and property interests. To learn more, reach out to the Dunn Law Firm by calling (435) 628-5405 to set up a free consultation today.
