Married couples will usually make their estate plan together, especially if they hold most assets jointly and have the same goal to provide for their family’s future. In that case, the surviving spouse would receive the majority of assets as primary beneficiary and act as an executor of a will or co-trustee of a trust.

This make sense especially if there are minor children to care for, or ongoing expenses that have to be covered. They could create a joint trust to include all assets, and when one spouse dies the other would take over as sole trustee to administer the assets according to trust terms.

However, there may be situations where spouses elect to have separate estate planning documents, usually some type of trust. Those include:

Creating a separate trust to protect assets from the creditors of one spouse

If one spouse has creditors the other may be able to insulate some assets with a separate trust.

Separate trust with spouse as co-trustee to manage assets

Even when separate trusts are created, the other spouse can be named as a co-trustee to take over when the grantor spouse dies.

In a second marriage where one or both spouses have property acquired prior to marriage, or there are heirs from the previous marriage.

Second marriages are common, and any property acquired before remarriage would be separate property that the owning spouse wants to hold and distribute on their own. They may want to designate different heirs from the first marriage as well.

One or both spouses receive an inheritance

Many times, if one spouse receives an inheritance, they may want to have a separate estate plan to keep it on their side of the family, or honor their family’s wishes as it relates to that inheritance.

There are no minor children as heirs, and the spouses want to designate certain assets differently
Spouses may wish to distribute separate assets to specific heirs for personal or financial reasons.

Potential tax benefits

There could be the potential for reducing estate taxes for wealthy couples.

Pre-nuptial agreements

This may affect how assets are designated and owned.

Legally Separated

Couples that are legally separated, but not divorced, may want to have their own estate plan.

If you are a married couple and thinking of making an estate plan, the attorneys at Shoup Legal, A Professional Law Corporation, can guide you in creating either a joint or separate plan to meet your unique circumstances. Please call them at 951-445-4114.