Chances are at some point or another you and your spouse have brought up the topic of estate planning. Whether it was talking about writing wills or how to plan for retirement, it’s a common discussion for married couples to find themselves in. Often, though, couples are not entirely familiar with the planning doors marriage opens up.
From unlimited lifetime gifting, to passing large sums of money upon the death of the first spouse, married couples enjoy a number of benefits that unmarried individuals do not. But, it’s impossible to utilize those mechanisms without some planning.
Whether you’ve been married one year or 20, these are the minimum estate planning documents that a married couple should have:
A Durable Power of Attorney for Healthcare (including HIPAA Release)
A power of attorney is a document in which one individual (the “principal”) grants another individual (the “agent”) the authority to act on his or behalf, often according to a specific list of directions.
When it comes to medical decisions, a durable power of attorney, permits the agent to make medical decisions relating to treatment on behalf of the principal and, properly drafted, it allows the agent access to the principal’s important medical records which may be necessary to consider when determining a course of treatment.
Without a valid durable power of attorney for healthcare in place, medical personnel have no obligation to follow anyone’s wishes regarding treatment or consent except for the patient’s. For married couples, this may not be as much of an issue as it is for other people, but it’s still important to cover your bases.
By executing a valid power of attorney, a couple can appoint each other to make heath related decisions if they themselves are unable to do so. The power of attorney ensures that your spouse will be able to take any action which you would be permitted to take on own behalf. Many states offer statutory forms that can be used if you know what you’re doing, or an attorney can draft one up very quickly with a few pieces of information.
A Durable Power of Attorney for Finances and Property
With a valid durable power of attorney for finances and property an agent should be able to access the principal’s bank accounts and financial records, pay rent, utilities and credit card bills, manage investments and loans and so on.
Without one, financial institutions like banks, utility providers or even landlords typically will not permit an individual that is not named on an account to access its funds or information. Of course, in the context of marriage, this is not as much of an issue as it sometimes is for single individuals. Nevertheless, it’s good to make one part of your plan to avoid any surprises down the road.
If you want to direct where your possessions will go if you die, then it’s important to have a last will and testament, or a will for short.
If a person dies without a will, state law determines how the assets will be distributed. That will mean less money and more stress for the heirs—an unpleasant prospect for family members already dealing with the tragic death of a young person.
In addition, married couples enjoy a number of benefits when it comes to passing property upon death. While others need to consider the tax implications of leaving amounts over a certain threshold, spouses can leave unlimited assets to each other in a will. That means that upon the first death, substantial gifts left to an inheriting spouse will not be subject to hefty taxes. However, it’s important to involve an attorney here, as the death of the second spouse may bring with it a number of unwanted tax consequences. Strategic drafting of a comprehensive estate plan can fully utilize these benefits while also eliminating any unwanted consequences.
If you are married and do not have any children, then 9 times out of 10 your estate will go 100% to your spouse. If you or your spouse instead want to leave certain property or a little bit of money to other loved ones, then you’ll need a will to override the default intestacy laws.
A living will is a legal document used to indicate which treatments you do or do not want applied to you in the event you either suffer from a terminal illness or are in a permanent vegetative state.
For example, you may indicate whether the use of feeding tubes or other life-prolonging equipment should be continued, or whether, at a certain point should be discontinued if there is no chance of recovery.
A living will does not become effective unless you are incapacitated; until then you'll be able to say what treatments you do or don't want. Without a valid living will, doctors may or may not rely solely on the wishes of your spouse when determining what course of treatment to pursue.
Drafting a living will is important so that nasty disagreements don’t occur if something happens to you.
Authorization for Final Disposition
Leaving your loved ones specific instructions regarding funeral arrangements can drastically reduce the stress that they’ll obviously be facing should you pass away and spare them the difficulty of making those tough decisions at a painful time. This can be easily complicated when your family and significant other each believe that you wanted something different.
Items to consider are:
- Burial or cremation
- Contact information for a chosen funeral home, cemetery, etc.
- Details about your desired ceremony
- Details about any marker you may want
Drafting an authorization for final disposition provides details to your family and loved ones you may have never discussed with them and gives you a way to have a say in the final details of your life.
Revocable or Living Trust
A living trust, which may also just be referred to generally as a revocable trust by your attorney is a tool which can be used by practically anyone to create efficiency and additional protection in an estate plan. You can learn more about revocable living trusts here.
Appropriate beneficiary designations on retirement (and other) accounts
There are a number of things that a will won’t pass along to beneficiaries, including retirement accounts, insurance policies and other financial instruments that are governed by separate contracts between you and the provider.
In order to ensure that these items go to your spouse if you die, it’s important to name him or her as the beneficiary of the policy.
Married couples also enjoy some additional benefits when it comes to planning for the disposition of retirement accounts, if done correctly. For example, a spouse inheriting an IRA will be able to roll the finds over to his or her IRA if appropriate steps are taken which will permit the surviving spouse to space out distributions over a longer period of time.
If changes are necessary you should make sure to file a new beneficiary designation form with the company.
Title to Real Estate
If you and your spouse own real estate together, then you should consider your options when it comes to how title should be held.
For example, by holding the real estate as joint tenants with right of survivorship you’ll be able to ensure that, should something happen to one of you, the entire interest in the home will pass to the surviving partner.
Married couples in a number of states are also permitted to hold property as tenants by the entirety- a type of ownership only available to married couples. Joint tenancy and tenancy by the entirety create additional rights and protections that may not otherwise be available to property owners.
It’s a great idea to talk to your attorney about what certain types of real property ownership mean to you and your spouse.
Life Insurance/ Life Insurance Trusts
Life insurance can provide a windfall for your spouse should you pass away suddenly, so it’s a good idea to look at your options with your insurance agent.
One drawback of life insurance is that its value gets included in your estate for tax purposes upon your death.
With some policies paying out millions of dollars, this can have a significant impact on your surviving spouse, as it may push your estate over the estate tax threshold, thus reducing the award your surviving spouse will receive.
One way to potentially bypass that unwanted possibility is to have your attorney draft an irrevocable life insurance trust to hold the policy. A policy held in an irrevocable life insurance trust does not get included when calculating the total value of your estate for tax purposes upon your death. By naming your spouse as the beneficiary of the policy, you can ensure that the payout will be maximized in the event you pass away.
Michael F. Brennan is an attorney at the Virtual Attorney™ a virtual law office helping clients in Illinois, Wisconsin, and Minnesota with estate planning and small business legal needs. He can be reached at email@example.com with questions or comments, or check out his website atwww.thevirtualattorney.com.