Written by: Barrett R. King, Esq.

 

There are few things more exciting than getting engaged to someone you love. While wedding plans, honeymoon arrangements, and bachelor/ette parties may be top-of-mind, most couples tend to overlook one very important piece of their future together: Estate Planning. 

For younger couples, estate planning can be a quick and easy process with minimal to no complications. Oftentimes, simple wills, healthcare directives, and financial powers of attorney can be sufficient. 

However, couples in the United States are waiting longer to get married these days. As a result, it’s now more common for previously single individuals to have accumulated significant savings, investments, and property. This alone can complicate the estate planning process compared to that of  younger couples, and even more so if children are involved. In almost every case, the soon-to-be-married couple should consider whether a premarital agreement should be executed not only to protect them in event of a divorce, but to maximize flexibility in estate planning for the property they are bringing into the marriage.

 

Communicate With Each Other  

Discussing what should happen after you or your spouse passes away is a difficult conversation to have, which is why many couples tend to avoid it. However, if you don’t have an open and honest talk, it could lead to complications later on. 

Here are some questions you should consider asking each other: 

1. How do you feel about purchasing and maintaining life insurance?
2. If I were to die suddenly or couldn’t manage my own affairs, do you feel like you would be capable of taking on those responsibilities alone?
3. Who do we want to care for our children if something happens to both of us?
4. If we leave money and property to each other, how should it be protected from creditors or future spouses?
5. Who do we want to make our end-of-life decisions if either of us is unable to communicate our wishes? What are those wishes?
6. How will we divide up our individual property? Who will it go to? 
7. What arrangements should we make for leaving property to our current and future children and grandchildren?
8. Should we leave inheritance to beneficiaries in a trust with specific instructions for distribution, or should they be distributed outright with no strings attached? 

Asking these questions and challenging your assumptions will prepare you to complete a successful estate plan.

 

Decide Between Joint or Separate Estate Plans

Estate planning can turn into a very intimate process in which both you and your spouse learn new things about each other and your respective property. If there are things that you want to keep to yourself, you will each need separate counsel to avoid a conflict of interest on the part of your estate planning attorney.  If you have goals to provide for different people than your spouse upon your death, it may be necessary to have a prenuptial or postnuptial agreement that addresses certain rights to inherit that are unique to a spouse.

Here are some circumstances in which we might recommend separate counsel and separate estate plans

1. If either spouse has children from a prior relationship, and especially if there is any tension between the spouses during discussions of how to divide property 
2. If one spouse brought much more money or property into the marriage
3. If one spouse has something they want to keep hidden in their estate plan, like a child from outside the marriage they do not want to reveal
4. If the couple has very different opinions about how philanthropy should factor into their estate plan 
5. If the couple has a pre- or postnuptial agreement, and whether or not they desire to change the terms of that agreement during the estate planning process.

While these situations are common reasons to seek separate counsel, there can be plenty of others. Another helpful way to decide whether separate counsel is necessary is to determine if there are any financial or family relationships that could breed contention or misunderstanding between the couple. If there are, separate counsel may be a good option. 

 

On the other hand, if none of the above issues are relevant to you and your spouse and you regularly communicate openly and honestly, joint legal counsel has plenty of advantages, including: 

• Being more economical
• Communication flows more smoothly and tasks are executed more quickly with fewer people involved 
• Allowing your attorney to act as both a counselor and a teacher to create solutions unique to your situation
• The parties have a joint representation and feel more connected to the total plan than if their plan is kept private

 

Consider Elective Share Laws

Most states have elective share laws designed to ensure that a married individual cannot completely disinherit a spouse. Some states also have forced heirship rules that preclude the disinheritance of a child, especially a minor child. The idea behind these laws is to protect families against financial ruin by someone who either unwittingly or unwisely attempts to disinherit a spouse or child dependent upon them for support.

They allow a disinherited spouse or child who is still dependent upon the deceased individual to legally claim a percentage share of their accounts and property, regardless of the instructions in the will or trust.

If you want to leave your entire estate to someone other than your surviving spouse, they will likely have to sign a pre- or postnuptial agreement that says they waive their elective share rights. These waivers have to meet specific requirements to be valid, and can vary by state. In Maryland the elective share may apply to both your probate estate and your non-probate property (the “augmented” estate)

Creating a successful estate plan is crucial for married couples. Without a careful and thoughtful arrangement put together by well-versed attorneys, you can almost guarantee that your loved ones will experience frustration, fees, and delays upon management and distribution of your estate. 

However, this can all be avoided by nurturing your roots soon after you plant them. Contact our attorneys to learn more about how we can help you plan for a bright and secure future for both of you, and your family.