Many friends and peers who have married in recent years have asked, shortly after their weddings, whether an estate plan is truly necessary before having children or if they do not anticipate having children. My short answer – yes, absolutely!
Couples with children tend to be eager to finalize their estate plan – in the event of their premature death, they want to be certain that a guardian is named for minor children and that their assets are distributed to their children in a responsible, measured and tax-efficient manner. Couples without children often hesitate to complete an estate plan. I suspect that one cause for this hesitation is a lack of urgency – without children to plan for, there appears to be less impetus to finish the estate planning process.
But there are compelling reasons for having an estate plan, despite not having children. Couples without children need to plan for a future that will not include adult children to provide assistance – physical, emotional, financial – as they age. One important task is determining who will handle your medical decision-making and financial affairs if you are disabled or otherwise incapacitated. Another important task is working together with your spouse to decide what will happen to your property after the death of the surviving spouse. Let’s consider each task in turn.
Planning for Incapacitation
Your estate plan should include durable powers of attorney for financial matters and patient advocate designations for medical decision-making. These documents are critical should you become incapacitated. Without them, your family must ask the court to name a conservator and guardian to oversee your care and custody – a process that is expensive, public, and may result in the naming of caretakers that you would not have chosen for yourself.
Couples without children typically name their spouse to act as their agent (under durable power of attorney) and advocate (under patient advocate designation) in the event of incapacitation. A trickier question is who to name in those roles if your spouse is unable to serve. You may name the same person or different individuals to act as your successor agent and successor advocate, but those roles have different responsibilities:
Possible candidates for successor agent and successor advocate include siblings, cousins, nieces and nephews, and friends. You may also consider naming a professional fiduciary, such as a trusted advisor or bank officer, as successor agent. Doing so, of course, would bring additional expense to overseeing your financial affairs but also a degree of experience.
Ultimate Distribution of Assets
Your estate plan should also include wills, possibly a trust, and beneficiary designations for retirement plans and life insurance policies. These documents enable you to designate how, when, and to whom your assets will be distributed when one or both of you are gone.
If you die with no will, the court system will essentially write one for you – generally, this would result in assets being distributed to your spouse, if surviving, and possibly to certain relatives. If you are the first to die, upon your surviving spouse’s death most of your combined assets would pass to your spouse’s family. This may cause you to unintentionally disinherit your family.
You should carefully craft your estate plan if you do not want to risk disinheriting your family, or if you would like to leave gifts to specific family members or friends. Perhaps the simplest way to do this is for both spouses to execute “sweetheart” wills, leaving everything to each other and detailing what happens when both spouses die. Or, you may create a joint revocable trust or separate living trusts – which have the added benefit of avoiding probate proceedings after your death to the extent you retitled assets in the trust during your lifetime.
Childless couples are more likely to give to charity upon death. These gifts may be made via a will or trust, but you should also consider naming charities as beneficiaries of your retirement plan. Unlike individual beneficiaries, charities will not pay income taxes on amounts received from retirement plans.
Contact any member of the Trusts & Estates Practice Group at Warner; if you need an estate plan or suspect that your current plan is outdated.