Estate Planning for Married Couples

Supporting Each Other's End-of-Life Plans

What is an Estate Plan?

An estate plan consists of several written documents that outline your end-of-life wishes and how you would like your assets to be distributed upon your death.
A well-rounded estate plan includes three important documents:
  • A Last Will and Testament to specify how you would like your assets divided after death, and to choose an executor to administer your estate.
  • A Health Care Directive, also known as a Living Will, to provide guidance to your family and to health care professionals on your medical treatment preferences if you become incapacitated and are no longer able to communicate for yourself, and also to appoint a health care representative to make decisions for you.
  • A Durable Power of Attorney to appoint an agent to handle your finance, real estate, or business matters if you become unable to do so. In other words, it gives that person the power to act on your behalf.

Purpose of Estate Planning

Estate planning serves many purposes, ranging from controlling your personal assets, to lowering tax costs associated with your death. Here are some of the main reasons to have your estate planned out in advance. By documenting your wishes beforehand, you can:
  • Control who receives your assets after death;
  • Ensure your family is provided for financially;
  • Specify guardianship for children/pets;
  • Specify personal medical treatment preferences;
  • Give thoughtful instructions in your absence;
  • Spare your family confusion, cost, or time by allocating your estate;
  • Lessen estate taxes or legal fees;
  • Streamline the passing of assets to beneficiaries or your spouse; and
  • Choose a person you trust to administer your estate.

Estate Planning and Marriage

Getting your estate in order becomes increasingly important after you get married in order to ensure your spouse and/or children are provided for financially should something happen to you.
When you get married your financial and legal status changes in a number of ways. As a spouse, you may file joint taxes with your partner, share income and property, as well as be recognized by the government as married individuals, which affects the way your assets are allocated upon your death.
To understand the way your property is perceived as a couple, it’s vital to first understand how separate and shared property works.

Separate and Shared (Marital) Property

Separate property is property you own as individual. Your spouse has no ownership rights to it.
Separate property tends to be:
  • Property acquired prior to marriage or property that both spouses agreed was separate before marriage in a written Prenuptial Agreement;
  • Gifts/inheritance given to one spouse before or after marriage; and
  • Personal injury proceeds.
Marital property is the property you share with your spouse. It is jointly owned between the two of you. This includes:
  • Property acquired/bought using money either spouse earned during marriage;
  • Active income earned, or the appreciation of assets due to marital efforts; and
  • Property given to both spouses during marriage (e.g. wedding gifts).
OR
  • Separate property that has been mixed with marital assets, such as depositing an inheritance into a joint bank account, or adding a spouse’s name to a property deed for property acquired before the marriage.
After you get married, your property is classified differently. If there are assets you wish to keep independent from your marital property, creating a written Prenuptial Agreement before marriage or placing property in a trust can help to separate these items.

Community Property and Equitable Distribution States

Where you live also affects the distribution of your marital property when you pass away. In the United States, there are two types of states that determine how property is divided between spouses after death or divorce.

Community Property States

The following states are governed by community ownership laws, meaning that each spouse owns equal (50/50) portions of marital property:
  • Louisiana
  • Arizona
  • California
  • Texas
  • Washington
  • Idaho
  • Nevada
  • New Mexico
  • Wisconsin
  • Alaska (if both spouses agree on making assets community property)
When one spouse dies, the surviving spouse is entitled to their deceased partner’s portion of marital assets, and the remainder of the deceased’s separate property is divided according to their Will.
Community Property States and Debt

In community property states, debts are shared by both spouses. If the debts of the marriage exceed the worth of marital property, these assets will need to be used to pay off the deceased’s debts before any property can be transferred to the surviving spouse.

Debt accumulated before marriage, such as a student loan, is typically kept separate from community debts.

Equitable Distribution States

The remaining states are governed according to equitable distribution (also called common law states), which take into account several factors when dividing marital assets in the event of death or divorce.
The factors include, but are not limited to the:
  • Income of each spouse;
  • Age/health of surviving spouse;
  • Earning potential of spouse;
  • Financial contributions of spouses to marriage or to the other spouse;
  • Length of marriage;
  • Standard of living;
  • Amount of property contributed to the marriage; and
  • Financial needs of dependent children.
During death or divorce, marital property is divided according to a combination of the above factors by the court in such a way that is considered fair to the surviving spouse. This split can be more or less than 50%, depending on the court’s decision.
Equitable Distribution States and Debt

In states that follow equitable distribution rules, debts are classified similarly to separate and shared property. Individual debts are usually kept separate, and are solely the responsibility of that spouse. If debts were accumulated due to marital necessities, such as school fees for children or a mortgage on a family home, then that debt is shared between partners.

Estate Planning with a Spouse

Once you understand how property works in a marriage and you identify the type of state you live in, your estate plans can be shaped accordingly. It’s advised that while you are married, you still create your own your estate plans.
However, it’s still important to be involved in one another’s plans. This may include discussing your end-of-life wishes, how you would like your estate carried out, and your separate and shared financial and estate goals.
Decisions to make together:

  • Who will be the guardians of your minor children and pets;
  • If you want to bequeath gifts to specific individuals; and
  • If you want to jointly own property to avoid probate and ease the transfer of shared assets after death.

Child Guardianship

If you and your spouse have minor children, it is imperative that you both name a guardian for your dependent(s). Without a Will to name guardians, the courts will decide who will care for your children.
If one of you passes away, the custody remains with the surviving parent. In the event you both pass away simultaneously, you will need to name a guardian outside of yourselves.
Most parents choose to keep siblings together by naming a guardian or co-guardians in a Last Will so that a court would not have the decision to separate them.
Also, you may wish to select more than one guardian in case your first choice is unable to take on the responsibility. That way, you have a backup in place.
Before choosing a guardian, discuss the following with your spouse:

  • Who do we know that is capable of caring for our children emotionally, physically, and financially?

Create a list of possible guardians, then begin asking yourselves the following questions:

  • Is this person dependable? Do they have enough energy to devote to this responsibility?
  • Do we trust this person to raise our children? Do their beliefs and values match our own?
  • Does this person have a relationship with our children? Would our child feel comfortable living with this person(s)?
  • Does this person have children already? How would our children fit into the mix?

Once you and your spouse have narrowed it down to the right person, approach them with this responsibility. The more open and honest the discussion, the greater peace of mind you will have with leaving this person in charge of your dependents.
You will also want to discuss financial support for your children, as well as any special instructions regarding their care, or how you would like them to be raised in your absence. If you wish, include a written letter with your Will outlining any information, requests, or feelings you have towards your child’s upbringing.
Married Without Children

If you and your spouse do not have any dependent children, or only have adult children, you won’t need to name any guardians to act in your stead.

Pet Caretaker

In addition to naming a guardian for children, you and your spouse may wish to include your pets in your estate plans as well. This can include naming a caretaker and/or setting aside a portion of money for your pet’s maintenance and upkeep.

Marital Property

The property you accumulate as a married couple is referred to as your marital assets. This may include:
  • Joint bank accounts;
  • Real estate (e.g. marital home);
  • Vehicle(s);
  • Business assets, if you are co-owners;
  • Income that is earned during marriage;
  • Goods acquired with money from a shared account; or
  • Gifts given to both of you.
As mentioned above, if one of you passes away before the other, his or her share of marital assets is appropriated to the surviving spouse according to the state you live in.
You may wish to speak to your spouse about what happens to marital assets if both of you pass away simultaneously. For marital property, such as a business, this type of planning is essential to protect valuable assets.
If there are assets you wish to leave your children, or other beneficiaries, it’s best to list out your property and determine who you would like to give your property to.
Along with your children, there may be other parties who you wish to leave an inheritance to, including:

  • Grandchildren;
  • Siblings;
  • Close friends;
  • Parents and in-laws;
  • Extended relatives (e.g. cousins);
  • Organizations, clubs, or charities you are involved with; or
  • Business partners or colleagues.

Who you both choose to leave assets to is ultimately up to you. While spouses are legally entitled to their portion of marital property, you both might want to gift certain mutually owned items to individuals you care about.
Going through your assets and establishing ’who will receive what’ ensures that you and your spouse are working together on these decisions for the benefit of your family.

Separate Assets

Most couples still tend to have separate property, apart from their spouse, even if it’s not that much. It really depends on the length of marriage, and what you both decided was best for your union before you got married.
So long as your separate assets did not commingle with marital property, these items are yours to give away to whomever you choose. Simply mention this property and the beneficiary in your Last Will.

Transferring Property Outside of Probate

After the death of a spouse, certain assets that are jointly owned can be transferred to the surviving spouse outside of probate court.
Advantages to transferring property outside of probate include:
  • Simplified estate distribution;
  • Lowered cost; and
  • Direct transfer to co-owner, ensuring property gets placed in the right hands.
There are three types of ownership, including tenancy in common (which is the default for most unmarried property owners), joint tenancy, and tenancy by the entirety’both of which are forms of shared ownership typically used by spouses.
You and your spouse may want to discuss how your property is owned in order to streamline the transfer of property after one of you passes away.

Joint Tenancy

Joint tenancy is when each owner has equal shares in property. This is typical between business partners, as well as married couples. Joint tenancy creates what is referred to as a right of survivorship, so when one owner dies, their interest in the property is automatically transferred to the surviving owner.
Real estate can be jointly owned if both spouses have their name on the deed. Upon the death of a spouse, his or her interest in the property can be automatically passed to the other spouse outside of probate. The surviving spouse will retain the interest, and no living beneficiaries can have a claim to it.
To establish a joint tenancy, state laws vary. Some states request owners to carefully phrase on the property deed or Will that the property is held jointly. Other states require a Survivorship Deed specifying joint tenancy between individuals.
Most states expect that you hold the possession in unity, as well as in interest, time, and title with the other owner.
Consult with a local lawyer if you need assistance establishing a joint tenancy, or to find out if your state has special requirements for joint ownership.

Tenancy by the Entirety

Tenancy by the entirety is similar to joint tenancy, and is recognized in about half of all states. It is reserved for married couples only. Both spouses own equal rights to the property (as a marital entity) and one spouse must get consent from the other in order to change the interest of this property while alive.
If one spouse dies, the other spouse gains full interest in the property by rights of survivorship. Like joint tenancy, the property is transferred to the surviving spouse outside of probate.

Health Care Planning

Another important element of your estate plans is to map out your health care preferences for yourself, and discuss these choices with your partner. They should also do the same.
Planning health care wishes in advance is important for a few reasons:
  • First, if you become incapacitated or ill, you may not be able to consent to certain treatments for yourself. A Health Care Directive gives you the ability to document your wishes on paper for health care professionals to refer to in such an event; and
  • Second, having a written record of your preferences can prevent your loved ones from having to make difficult health care choices for you.
When you are married, your spouse is legally authorized to make decisions for you. If you want to choose someone other than your spouse to make these decisions in your stead, you can appoint someone else to be your Medical Power of Attorney. Just be sure to discuss this choice with your spouse, as well as your health care representative, to ensure everyone is on the same page regarding your decision.
Some common choices you may want to specify in your directive include:

  • Your views on your desired quality of life;
  • Your thoughts on artificial life support, artificially administered food and water, and comfort care if you have a terminal condition, enter into a coma, or you are in a persistent vegetative state; or
  • Your opinions on surgeries, blood transfusion, or organ donation, etc.

You may include as much detail as you wish regarding your medical preferences in your Health Care Directive, but keep in mind that some states have limits on what health care professionals are legally permitted to perform as per your instructions.

Storing Your Documents

When you and your spouse have each completed your own Last Will and Testament, Health Care Directive, and Power of Attorney, store them in a safe place, such as a safe, security deposit box, or with a lawyer. Tell each other, as well as your individual executors and health care agents, where these documents are kept.

Updating Your Estate Plans

Once you have created your estate plans, update your documents after major life events so they always match your current wishes. For instance, if you have children, both you and your spouse may want to revisit your Wills if you intend to name guardians and set aside an inheritance for them.
Update your Will after the following life events:

  • Birth or adoption of a child;
  • Death of a beneficiary or guardian;
  • Marriage, separation, or divorce;
  • Relocation;
  • Birth of a grandchild;
  • Your executor becomes ill or passes away; or
  • You acquire significant assets or incur significant debts.

Supporting Each Other's Estate Plans

Although you and your spouse create separate estate plans, you are very much involved in one another’s end-of-life preparations.
When you collectively work towards getting your estate in order, you will both feel greater peace of mind knowing that you have taken steps to protect your family, and each other.
As partners, your estate wishes should be clear, especially if something happens to one of you and the other has to manage your affairs. Talk through your estate plans, and support each other’s goals.
You’ll find that by working together, the process will not only become easier, but also less cumbersome, knowing that your spouse is creating their plans alongside you.
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