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Can I Make Estate Plans Without My Spouse by Davis Law Group PC

Can I Make Estate Plans Without My Spouse?

May 6, 2021 Douglas Davis

The American family has changed quite a bit over the last few decades, and assumptions that a couple will share bank accounts, tax obligations or even last names can be thrown out the window.

Nowadays, there are plenty of options for couples to keep finances, identities and future plans separate. But what about when it comes to estate planning? The answer may be more complicated than you’d expect in this day and age.


It is possible to create an estate plan without involving your spouse, but there are some important considerations to make. Primarily, keep in mind that only assets that are solely owned by you can be controlled in your own independent will or trust. Plans you make for certain personal retirement accounts (subject to some restrictions), savings accounts, and individually-owned property can be done without involving a spouse. Any accounts, deeds, or titles in both of your names, however, will need to be handled by both parties.


There are other considerations to take into account, too. For instance, if the planning spouse dies first, items owned by that individual will be distributed according to the plan. Any jointly owned property will go to the surviving spouse automatically. Should the non-planning spouse die first, his or her assets will be distributed according to state law. Depending upon the size of the estate and family circumstances, most, if not all of the assets will be distributed to the surviving spouse. Then, when the planning spouse dies, all of the assets will be distributed according to their estate plan.


This “default” planning can be especially concerning for couples with blended families. Without proper planning, the children of the first spouse to die may be inadvertently disinherited. For this reason, anyone with kids should involve their partner and co-parent in their estate planning process. Even if you keep other aspects of your lives separate from one another, it’s important to get on the same page about your legacy and the property you’ll leave behind.


Other aspects of your estate plan that you can handle on your own include executing powers of attorney for health care and financial decisions. But keep in mind that if you would like to appoint your spouse as your agent under a financial power of attorney or proxy under a medical power of attorney, you need to properly execute the documents. Just because he or she is your spouse does not give them the automatic right to make financial and medical decisions on your behalf. Should you become incapacitated, powers of attorney can help ensure that your wishes for your health and wealth are carried out. However, you may have someone else in your life who you believe would be better suited to this responsibility, in which case, as long as the proper documents are executed, they can take those on.


While there are several things you can do independently with your estate plan, we do generally advise having your spouse on board with your future planning. To get started, make a list of the assets you and your partner share. While you’re at it, outline individual retirement accounts, insurance policies, and approximate balances – this information will be necessary when meeting with an estate planning attorney. Simply involving your partner in the initial conversations about your joint assets can help ease anxiety surrounding the estate planning process and help get you both on the same page.


We Can Help

Davis Law Group is here to help with your estate planning needs. Give us a call and we can arrange a time to meet to discuss the importance of estate planning and help craft an overall estate plan that will protect everyone involved.