Copyright 2006 Ronald Hudkins

The first question many people have when considering estate planning is how to protect their spouse in the event that they pass away. Although it is common to offer the advice that a will or trust is the best way to protect a surviving spouse, it is also important to remember to explain what protection a spouse has prior to a will or trust being created in which they are a named as an heir or beneficiary. This will enable both the client and the lawyer involved to see what else may be done to advance the protection of the surviving spouse. In addition, running through such a checklist may help an attorney see avenues for reducing costs for clients and let the clients know that their attorney is attempting to select legal options tailored to their needs rather than choosing a one size fits all approach.

For example it is important for most clients who are married to understand that they probably own most of their major assets in what is called joint tenancy. An asset held in joint tenancy is passed automatically to the surviving spouse in the event that one spouse dies. Most married couples own most of their assets, such as the family home, automobiles, investments and accounts in joint tenancy. So the typical question that an estate planner helps to answer, for those couples, is not how to protect the surviving spouse with respect to the major marital assets. The typical assets in an estate owned by a married couple do not need to be guarded for the surviving spouse, in every instance. The question becomes, where do we want this asset to go after we have both passed away.

However, you may discover, in the state in which you live, that it is helpful to have estate-planning tools, such as wills and trusts, in place in case there is some challenge to the remaining spouses ownership. The example above is not meant to suggest that most people dont need estate planners to guard their spouses interest in case of their passing, but rather, that it is important to understand what rights your spouse has before the question of estate planning arises and then to build onto those rights. It is important to have an attorney who will explain what those basic rights are, and how the state in which you live has designed those rights. Then your choices regarding estate planning will make more sense. Remember, that planning an estate is, in part, a creative process. There are many ways to plan an estate and the one that captures your interests in the most thorough way is the best. Your attorney should be working hard to find the right solutions tailored to your needs.

Whether it is because assets have come into the marriage in a way that is not traditional, or because the assets in the marriage have already been altered by law, like a pre-nuptial agreement, there may legal instances where a spouse will need additional legal protections in the form of estate planning. In addition, states will have different laws regarding how they allow assets to be transferred via a will. For example, if the individual who passes away has children, some states require that the children and the surviving spouse split any asset that goes into probate. In other words, the state will require the assets that can go into a will to be split in this way. This system might be great for some clients, but for others it means that an already modest estate be split, leaving the surviving spouse and children in financial trouble. Because wills are more heavily regulated than are trusts, a living trust might be the better strategy in a state that requires this kind of split.

Again, it is important when considering how best to protect your spouse in the event of your passing, to understand what assets need protecting -- in other words, what assets could be taken away from your spouse after you die. Second it is important to understand what your states policies are regarding wills and trusts in order to understand what asset protection strategies are right for you. And finally, it is good to understand which assets will only be the subject of asset transfer in the event that both spouses pass away, and to decide, with your spouse, what you want to be done with those assets.