Family relationships have changed and evolved over the last few decades, and the old assumption that married couples will share finances, tax obligations, and a last name no longer apply in the 21st century. When it comes to keeping your finances, identity, and future plans separate, more options are available now than there ever have been. This sense of independence leads many married people to wonder if they can make estate planning decisions without involving their spouse. There’s no simple answer to this question, but here are a few things to consider.
First, recognize that only assets you solely own can be controlled by your 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. But any accounts, deeds, or titles in both of your names will need to be handled by both parties.
You’ll also need to take a few details into account as you move forward. For example, if the planning spouse dies first, items owned by that individual will be distributed according to the plan. Any jointly owned property will automatically go to the surviving spouse. Should the non-planning spouse die first, his or her assets will be distributed according to state law. Depending upon the circumstances and the size of the estate, most of the assets will be distributed to the surviving spouse. Later, when the planning spouse dies, the assets will be distributed according to that person’s estate plan.
This “default” planning can have negative consequences for blended families. Without proper planning, the children of the first spouse to die may be inadvertently disinherited. This means that anyone with kids should involve their partner and co-parent in every detail of their estate planning process. Even if you keep other aspects of your lives separate, join together and communicate clearly about your legacy and the property you’ll leave behind.
At the same time, executing powers of attorney for health care and financial decisions can be done without involving your partner. Even if you would like to give your spouse financial power of attorney or appoint them as a proxy under a medical power of attorney, you need to take personal responsibility for executing the documents. He or she may be your spouse, but this does not give them the automatic right to make financial and medical decisions for you. If you become incapacitated and you’ve planned ahead carefully, powers of attorney can help ensure that your wishes for your health and finances are carried out.
Powers of attorney aside, it’s a good idea to partner with your spouse as you engage in estate planning. Start by listing the assets you and your partner share. Outline individual retirement accounts, insurance policies, and approximate balances, and bring this information when you meet with an estate planning attorney. Simply involving your partner in the conversations about your joint assets can help ease anxiety surrounding the estate planning process.