While estate planning for couples without children seems like it would be very simple, the opposite is almost always the case, according to this informative article titled “Three keys to estate planning for couples without children” from The News-Enterprise.
If there’s no last will, the law in the state you in writes one for you. This is called “Intestate Succession” and dictates who gets what, when they get it, and who is in charge.
There are three relatively simple ways for couples without children to be sure they control who gets their assets when they die.
A secondary level of beneficiaries. Couples don’t always die at the same time, although it does happen. For the most part, upon one spouse’s death, assets owned together, including Payable on Death, or POD accounts, remain in possession of the surviving spouse. If all of the assets are owned jointly, the surviving spouse may avoid probate altogether. However, they should check with an estate planning attorney to be sure their state will accept this.
There should be provisions in the last will in case of simultaneous death. This lets the more important provisions focus on the beneficiaries. While the property may pass easily outside of probate to the survivor, the same will not be true if the property is to pass to beneficiaries. The estate will go through probate.
If at all possible, couples without children should have the same designated beneficiaries. If the couple intends to leave everything to the surviving spouse, they must decide who will receive joint property after both have died.
The Couple without children should create Wills that work together. Designating separate lists of beneficiaries in each spouse’s Last Will ultimately results in the marital property being left only to one spouse’s loved ones. The result: the other spouse’s family can end up being disinherited.
One way to address this is to create marital shares of the property. Couples generally divide the marital property into equal shares, although couples in blended families may use a different fractional share.
For each fractional share, each spouse should write out their own list of beneficiaries, ensuring that the total ends up being 100%.
Another point to be determined: will survivors within the group receive a larger share pro-rata, or will children of the deceased beneficiaries receive their shares? This needs to be clarified when the estate plan is created to avoid potential problems for beneficiaries.
If all assets go to the surviving spouse, some beneficiaries could potentially be removed by a revised will from the surviving spouse. If the couple without children wants to prevent such disinheritance, they can with a well-drafted revocable living trust. This can lock up the deceased spouse’s shares to allow the property to remain available for the survivor, but the survivor cannot change beneficiaries for the deceased spouse’s share.
Estate planning for couples with no children can have its own pitfalls, so consult with an experienced estate planning attorney, who will know how to protect all members of the family, as well as explore options about who to put in charge.
Reference: The News-Enterprise (July 27, 2021) “Three keys to estate planning for couples without children.”