Estate planning for couples with no children can seem deceptively simple. In fact, many couples with no children mistakenly believe that they are less likely to need a last will and testament than couples with children. However, the opposite is nearly always true, as intestate succession laws will dictate who will receive property in the absence of a will.
There are three simple ways to ensure that wishes will be followed and property distributed in the way that both spouses envision.
First, couples must plan for the second level of beneficiaries. Too often, couples approach estate planning as a liability planning in case of simultaneous death. Although it does occasionally happen, couples rarely die simultaneously. In most cases, upon the first spouse’s death, jointly held assets and payable-on-death accounts simply remain in the sole possession of the surviving spouse without ever needing to file the will in a probate matter at court.
Although provisions should be included in the will in case of a simultaneous death, the more important provisions will be dedicated to the beneficiaries who will receive property upon the death of the survivor. While property may pass easily outside of court to the survivor, upon the survivor’s death, property must pass to beneficiaries, most often through court.
Second, couples should have the same designated beneficiaries. Married couples leaving property to the surviving spouse should decide together who will receive joint property after both spouses have died.
Designating separate lists of beneficiaries ultimately will lead to the marital property being left only to one spouse’s loved ones. Competing wills should have no place in the estate plan of a married couple.
An easy way to ensure both spouse’s loved ones are included is to create marital shares of property. Couples who have been married for decades generally divide marital property in equal 50% shares. Keep in mind that this division is for mathematical purposes only, not an actual division of property. Couples with blended properties may use a different fractional share.
Within each fractional share, each spouse should write his or her own list of beneficiaries, with percentages that total 100%. Next, simply multiply the spouse’s share with the beneficiary’s share. For example, if the wife’s share is 50% and she desires to leave her sister 50% of her individual share, her sister would be entitled to 25% of the total marital property.
After the fractional share is calculated, decide on successors for any beneficiaries who may predecease both spouses. Will the survivors within the group receive a larger share pro rata or will children of the deceased beneficiary receive their share? Decide in advance to avoid problems for beneficiaries later.
Third, couples must remember that beneficiaries can be changed after the death of the first spouse. These changes may be unintentional, such as through the addition of another person on a bank account, or intentional, by changing the Will to exclude the deceased spouse’s beneficiaries.
If spouses want to ensure that individual beneficiaries are not changed by the survivor, they should consider using a revocable living trust. It can lock up the deceased spouse’s share in a way that allows property to remain available to meet the needs of the survivor, but without allowing the survivor to change beneficiaries for the deceased spouse’s share.
Estate planning for married couples with no children can be full of unanticipated pitfalls. With careful planning and consideration, however, couples can be assured that their hard earned marital property will pass in the way they both desire.
Cynthia Griffin is an elder law and estate planning attorney at Burnett and Griffin PLLC in Elizabethtown. She can be reached at email@example.com.