Estate Planning Week, Part Two: Married Couples

October 22, 2019

3 Topics To Consider in Estate Planning for Married Couples

You probably don’t want to have a conversation with your spouse about what happens to you and your stuff after you die or become disabled. During Estate Planning Awareness Week, we will help you understand why it’s important to have this conversation before it’s too late. You’re not alone; it’s a conversation that more than half of Americans haven’t had. But it’s never too late, whether you’ve been married one week or 20 years. Sitting down with your spouse and having a conversation about what you want to happen to you and your stuff is a good start to a thorough estate plan. In starting estate planning for married couples, there are three key areas that you should consider when (and the first two apply still to married couples without children).

What happens to your stuff when you die?

You and your spouse can choose to distribute your assets in many ways after you are gone. This can include (a) giving money to charities; (b) giving money to your children, whether it’s a lump sum or a graduated schedule; and (c) giving money or assets to other family members or friends. By utilizing a will, and sometimes a trust, you and your spouse can execute an estate plan that includes both of your wishes in transferring what you have accumulated over your lifetime.

It is important to note that the only person entitled to an inheritance is a spouse. Unless there is a premarital agreement in place or a spouse disclaims their interest, the surviving spouse of a deceased person is entitled to (roughly) half of their deceased spouse’s estate. This is called the “elective share.” Talking to your spouse about the distribution of your estate, individually and collectively, allows for a smooth transition in the event of death, both for the surviving spouse and surviving family.

Who takes care of you when you get old?

Old age is a common misconception around estate planning. It’s not just for old age or when you die — it can also be when something happens and you can no longer make decisions for yourself. For these situations, there are two kinds of powers of attorney — power of attorney for health care and power of attorney for finance. Prepare these documents in advance and prevent the need to establish a guardianship or conservatorship over you while you are still alive. It is possible to have a different person named to make decisions over your health versus your finances.

Typically, as a married person, you will nominate your spouse as your first choice as your “agent” to make decisions for you related to both health care and finances. It is important for you to discuss with your spouse whom the alternative person will be in the event your spouse is not able to serve as your agent.

If you don’t have a power of attorney and become disabled or incapacitated and can’t make your own decisions, the law requires the courts to appoint a guardian to make decisions on your behalf. This is costly and takes time. Create a simple power of attorney today, while you are not incapacitated. This will prevent the need for your loved ones to go through the guardianship process.

Who will be your children’s guardian?

If you have children, it’s important to think about whom you want to care for your children in the event both you and your spouse die or become disabled. Nebraska law allows you to nominate someone to care for your children if you die or are unable to care for your children. The person you nominate will establish a court appointed legal guardianship over your children. Whom you choose can be a difficult decision that you both will make. Having this discussion before tragedy strikes is an important step in the estate planning process.

Estate planning is more than just assets. And it is more than just passing wealth. Estate planning is about making sure you and your family are taken care of, no matter your stage in life. Give yourself the time to make a plan for you.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


If you need help with an Omaha area case, contact Hightower Reff Law today and come visit with one of the attorneys at the Omaha office. 


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