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Halloween Legal Myths

By John A. Meier, II

​With Halloween being near, these are some legal Myths that may be of interest:

MYTH: My spouse and I jointly own our house, so it automatically becomes the property of the surviving spouse when one of them dies

FACT:  This is not always true. If the spouses owned real property, such as their home, as Joint Tenants or as Tenants In Common, when the first spouse dies, the deceased spouse's interest in the house does not automatically pass to the surviving spouse. Rather, probate must be opened for the deceased spouse. If the deceased spouse had a Will, at the conclusion of the probate process, the property can be distributed as set for in the Will, possibly to the surviving spouse. If the deceased spouse had no Will, the property will be distributed to the deceased spouse's heirs at law, which can include the surviving spouse. This can also include children from that, or a prior, marriage. If the Deed by which the joint spouses acquired the property clearly states that the spouses jointly own the property "With Right of Survivorship and not as Tenants In Common" the deceased spouse's interest will be distributed to the surviving spouse. No probate is required for this transfer. It can be a nightmare for the surviving spouse if the wrong assumptions were made about the jointly owned property.

MYTH:  Couples who live together for six years are considered married

FACT: Some states permit "common law" marriages. Basically, a common law marriage is a legally recognized marriage between two people who have not obtained a marriage license or had their marriage solemnized by a legally binding ceremony. The amount of time that a couple has cohabitated is not the sole determinant of whether the couple has entered into a common law marriage. Since 1995, Georgia no longer recognizes common law marriages. If a common law marriage existed prior to the time they were no longer recognized in Georgia, the marriage could still be valid. There is no common law divorce. All divorces must be granted by proper judicial process.

MYTH: Every nonprofit (and every donation to a nonprofit) is tax-exempt

FACT: For a nonprofit to gain tax exempt status, it must fit the requirements of Section 501(c)(3) of the U.S. tax code and obtain certification of its tax-exempt status. Donors who make a qualifying donation to a 501(c)(3) organization are entitled to list the donation as a deduction, but donations to groups that have not been granted tax-exempt status under 501(c)(3) are not tax deductible.

MYTH: The devil is always in the small print

​There are numerous stories, legends, and movies about making contracts with the Devil. These usually involve a contract for the Devil to take possession of your soul in exchange for fame and worldly goods. The people in these stories usually find out things aren't that great even when they get what they want or that there is some twist to keeping the details of the contract — a good reminder to always read a contract, including the fine print, and think about the implications. And remember, if it seems too good to be true, be extra cautious.

​​John Meier has been assisting clients with their estate planning, long term care planning, elder law, trust administration, and probate needs since June of 1985. John heads up FCW's Estate Planning and Probate divisions and continues to focus his efforts assisting individuals and families with their estate planning, long term care, elder law, probate, and trust administration needs. John has been named to Georgia's Legal Elite and Atlanta Magazine's Top Wealth Managers, and currently serves as the City Attorney for Waleska, Georgia.He is also a Certified Trust and Financial Advisor, a nationally recognized certification, distinguishing him among his peers.

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