Probate Is No Easy Process
Anyone who has been involved in the probate of an estate is likely to agree that the process can be emotionally straining and time consuming. In nearly every case, the question of, “who gets what” can certainly add to those already heightened emotions. The answer may be as simple as looking to the will created by the deceased individual. Alternatively, things may become more complex if the deceased person did not create a will, leaving their assets subject to controlling state law. This is called dying “intestate.”
In an intestate estate, the law determines who is to receive a share of the deceased person’s estate. Perhaps unsurprisingly, surviving spouses are looked to as having the highest priority in a number of intestate considerations. This too seems to be a fairly simple matter to address, right? Isn’t it as simple as looking at who the deceased person was married to when he or she died? As a common attorney response would have it… the answer is: it depends. Unfortunately, in some cases, the situation becomes even more complex, when the marriage is thought to be based in common-law.
Arizona Is Not A Common-law Marriage State
This means Arizonians who simply live together are not deemed married as a result of cohabitating for a certain amount of time, even if they consider themselves to be married. To put things in perspective from a probate standpoint, if person A and person B (both Arizonians) are in a relationship, and person B dies intestate, person A will not be given the same consideration as a surviving spouse simply because he or she lived with person B for a particular number of years and he or she considered person B to be “like” a spouse. Again, this is because common-law marriages cannot be contracted in the state of Arizona.
Nevertheless, Arizona does recognize marriages that are valid by the laws of the place where the marriage was contracted. Using the same example as above but changing the facts slightly: if person A and person B were validly married by common-law in a state that recognizes common-law marriage, at person B’s death, Arizona would recognize the marriage as valid and would treat person A as the surviving spouse provided a number of other factors were met – a thorough discussion of which exceeds the scope of this article.
Any number of things can arise in a probate matter that make the situation more complicated, complex, time consuming and costly. The bottom line in probate is that it is almost always better to have a will than nothing at all. Although wills do not avoid probate, creating a valid will and dictating “who gets what” takes the control out of the state’s hands and acts as a step in the right direction in alleviating the “what ifs” and “what abouts”. Of course, in many cases, having a trust is better still in helping to avoid probate altogether.