Marriage comes with many responsibilities and obligations. Getting married can change everything in one’s life, including future plans. Estate planning for married couples is important whether or not the couple has children. Marriage is not just a lifelong commitment; it is also a financial partnership. Many wives and husbands, especially early in their life together, do not understand how important estate planning is. Some couples even put off creating an estate plan, thinking that estate planning is a concern for couples far older than themselves. However, the sooner you start planning, the sooner you can ensure your financial well-being as a couple. The Arizona estate planning attorneys at Harrison Law, PLLC, assist single and married individuals with an array of services, including but not limited to drafting important estate planning documents. Call our office at (480) 320-2310 and set up a time to discuss your situation.
Does a Married Couple Need an Estate Plan?
The answer is usually yes. Many people mistakenly believe that estate planning is not really that important when you are married because of the way married couples own things jointly. The temptation is to think that, in the event of an accident or illness, one’s spouse will inherit everything anyway, and so there is no need to create an explicit plan for the distribution of assets. However, having an estate plan in place is still critical, whether you are single, married, divorced, or widowed. Some of the most important purposes of estate planning for married couples are:
- Protecting your legacy and your family: A well-drafted estate plan allows you to ensure that your family is provided for financially and also helps you protect your legacy for future generations.
- Giving you control over who inherits what: With an estate plan––and, specifically, the Last Will and Testament and Living Trust––you can control who inherits your assets after you are gone. You can also name a person you trust – known as the executor, personal representative, or successor trustee of the estate – to carry out your wishes after your passing and ensure that your loved ones receive the assets you want them to have.
- Protecting yourself in the event of incapacity: If you become incapacitated later in life, your surviving spouse will have to make tough decisions on your behalf. Planning for incapacity can ease the burden on your spouse (or other family members) by specifying your wishes for medical care and end-of-life decisions in the event you become incapacitated.
- Protecting your children: Life can be unpredictable. If something happens to you and your spouse before your children turn 18, your estate plan can protect your children. Married individuals who are also parents of minor children can use their wills to name guardians who would care for and raise those children in the event that both parents die before the children attain their majority.
- Minimizing the likelihood of family disputes: When you pass away, your surviving spouse may not be the only person set to inherit from you. Confusion over who should receive what from your estate may result in unnecessary disputes among family members in the absence of an estate plan that would document your wishes.
Married individuals can find a number of other advantages to having an estate plan tailored to their specific goals, needs, and family dynamics. The attorneys at Harrison Law, PLLC, realize that the need to create an estate plan may arise at any point during your marriage. Generally, however, the sooner you start planning, the better.
What Happens if A Married Individual Passes Away Without a Will?
Despite the importance of having a solid estate plan in place, a survey cited by the American Association of Retired Persons showed that 6 in 10 American adults do not have a will or living trust. Dying without a will is known as “dying intestate” in legal terms.
When someone passes away without a will––regardless of their marital status––their estate will be subject to the intestacy laws of the state of which the individual is a resident at the time of their death. These laws vary greatly from one state to another. Arizona’s intestate succession laws, for example, give preference to the surviving spouse and children of the deceased person pursuant to Arizona Revised Statutes § 14-2103. Below is an overview of different family situations and how the state’s intestate succession would apply to each of them:
- Married, with no children (“without issue”): If the deceased does not have any children, their surviving spouse will inherit the entire estate.
- Married, with children from the current marriage: If the deceased is survived by his/her spouse and children from the current marriage, the spouse will still inherit the entire estate.
- Married, with children from a previous marriage/relationship: If the deceased is survived by his/her spouse and children from a previous marriage or relationship, the spouse will inherit 50% of the estate and the remaining half of the estate will be divided among the children.
- Not married, with children: If the deceased person is single, divorced, or widowed, their children will inherit the entire estate. If children have not reached the age of majority, the court will appoint a conservator to administer the assets until the children turn 18.
- Not married, with no children: If the deceased person is single, divorced, or widowed, and they have died without issue, their assets will be distributed in the following order of priority: parents, siblings, nieces/nephews, and grandparents.
If there are no immediate or extended family members, the state of Arizona can claim the decedent’s assets. However, this situation is rare.
Joint Wills vs. Separate Wills for Married Couples
When creating an estate plan, many married couples face a dilemma over whether they should create a joint will that they share vs. a separate will for each of the partners. A joint will is a single document that acts as the Last Will and Testament for both spouses. Although the concept can be attractive to many married couples, there are several potential problems with a joint will. Probably the biggest problem is that after the first spouse dies, the joint will becomes irrevocable, which means the surviving spouse cannot make any changes to it. As a result, the surviving spouse will not be able to modify the terms of the will even if their circumstances change or they simply change their mind about how their assets should be distributed.
Overall, a separate will offers more flexibility than its joint counterpart. Each spouse has their own separate needs and wishes, which may not always be exactly in line with those of their spouse. In addition, since spouses rarely die at exactly the same moment, it is entirely possible that the surviving spouse will experience changes in their life that would make it advisable to update the terms of the will, which they cannot do if the will has become irrevocable due to their partner’s passing. Creating a separate will may be especially important for spouses who have children from previous relationships, or when spouses have their own financial assets.
Choosing the Executor of Your Estate When You Are Married
Married couples often choose to name their spouse as the executor of the estate. While there is no legal prohibition against choosing your spouse to serve as your executor, doing so may not be a rational idea when the estate in question is highly complex. The surviving spouse, who in most marriages has no experience managing estates, may end up being too burdened by the task of settling their deceased spouse’s affairs, which can be especially difficult at a time when the bereaved spouse is also trying to grieve and mourn their loss.
Whether or not you choose your spouse as the executor, it is always wise to name an alternate executor in case your first choice is unable to fulfill their duties. Many times, married couples also choose to name the same executor in their wills. As long as the selected person has the necessary knowledge and competence to carry out their duties, both spouses can choose the same executor.
Experience You Can Rely On
The estate planning attorneys at Harrison Law, PLLC, have extensive experience in helping single and married individuals prepare wills and other documents to protect their legacy and prepare for the future. If you need help with estate planning for married couples, we can work with you and your spouse to help you understand your financial situation and develop an effective plan tailored to your unique circumstances. Discuss your concerns and questions with our attorneys by calling (480) 320-2310.
© 2023 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved
This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.
