You stood together and promised commitment, for richer or poorer, until death parts you. The process of estate planning for married couples is just one way to walk the walk of that commitment, to make sure that whichever spouse outlives the other will have everything they need.
Estate planning isn’t just about protecting each other, though; it’s also about protecting the things you build together so they can be passed down to the next generation. While your specific wishes and circumstances will affect the recommendations your estate planning attorney makes, many married spouses start with the same basic documents.
Drafting a will is a core element of the typical estate planning process. This document can be used to establish your wishes for how your assets are distributed after your death. Parents of minor children may also use their wills to name their chosen guardians for the children, should the parents die. Even if you and your spouse don’t have minor children, creating wills could still serve several purposes.
If you die intestate, or without a will, the state’s intestacy laws will determine who inherits your assets. Generally that will be your spouse, should they outlive you, but there are several reasons why you might not want to let your assets be passed along this way. For one thing, your heirs may have to go through the probate court process before they can access their inheritances. Also, Massachusetts intestacy laws may pass your assets to relatives you’re not close with, while cutting out loved ones who aren’t legally your descendants, like stepchildren or godchildren. Drafting a will lets you eliminate any uncertainty about how you want your assets to be distributed.
Does each spouse really need their own individual will? Legally, no, although it’s commonplace for each individual to have one. There are cases in which two spouses will essentially share a single will. Some couples draft joint wills or mutual wills, which can be used when both parties share the same wishes. There can be some downsides to using these documents, however, so your estate planning attorney may advise that each spouse have a separate will.
Trusts are versatile estate planning tools that can be used for a surprising number of purposes. Some married couples have both joint trusts and individual trusts for each spouse; others only have individual trusts. How your estate planning attorney helps you configure your trusts depends largely on your goals and your family’s needs. Trusts may be used to provide for disabled adult children, to make sure assets are only passed down to blood relatives, to manage charitable giving, to provide for the grandkids’ educational needs – and for many other reasons. Some married couples also opt to set up credit shelter trusts, which allow them to take advantage of each spouse’s estate tax exemption. (Read this article on the difference between wills and trusts if you’re looking for more on the topic.)
Power of Attorney
While creating a will allows you to specify your wishes around what happens after you die, creating a power of attorney (“POA”) allows you to name the person or people you would like to make certain legal and financial decisions on your behalf, if a day arrives when you’re unable to do that for yourself. When drafting a POA, you may name multiple agents to act on your behalf.
Your spouse might already have some legal authority to make decisions on your behalf. If you have a shared bank account, for example, your spouse could access your money and use it to pay for emergency medical expenses. But it’s a mistake to forgo drafting a power of attorney just because you’re married. There’s no guarantee that, if you ever do become unable to make legal or financial decisions for yourself, your spouse will be available to make those decisions for you. For example, if you do someday need financial assistance but your spouse is out of the country, the secondary agent you named could step in.
Note that a power of attorney isn’t just one boilerplate document; there are some different options for how this document can be drafted and used. Like wills, POAs can be tailored to address a number of eventualities that could come up in your future.
Health Care Proxy
Executing a Health Care Proxy form is also an important document of an estate plan. The Health Care Proxy allows you to appoint an individual to make medical decisions on your behalf in the event you are unable to. Thus, if you’re unconscious and need emergency surgery, having a Health Care Proxy in place would allow your spouse to grant the necessary permission to proceed. Moreover, having this document in place decreases the likelihood of disagreements among other family members who may feel that they are better suited to make medical decisions on your behalf. Although you can only have one named agent serving at a time, a Health Care Proxy allows you to name as many successor agents as you would like.
Ultimately, the top thing a married couple needs to make sure their estate plan is sound is the help of an experienced estate planning attorney. The documents themselves can’t guarantee the outcomes you want; they have to be crafted to suit your individual and shared goals.
The attorneys at Ladimer Law are experienced with all elements of estate planning for married couples. Not sure where to start? We can help with that. Contact Ladimer Law today, to make sure you and your spouse are ready for whatever comes next.
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Ladimer Law specializes in estate planning. We protect our clients, their heirs, and their assets by listening closely, knowing the law, and executing estate plans that fit and evolve.