You’ve done the cost/benefit analysis and decided to use a revocable living trust to achieve your estate planning goals (read my article, “Is a Revocable Living Trust Right for Me?” first).
If you are married, your next step is to decide whether to use a joint revocable trust or, instead, go with the more common approach of creating two separate trusts (one for each spouse).
Sadly, if you go to a general practitioner, this question would likely not even come up. As in all things estate planning, there are pros and cons to each and I want to enable your informed choice. Let’s jump in and figure this out.
Joint Revocable Living Trust:
What could be more romantic than a joint revocable living trust, right? We’re in love, we made it past the 7-year itch, nothing’s gonna stop us now! I joke because I want to get it out of your head that joint has some kind of marital “goodness” to it. It doesn’t. In fact, more often than not, the separate trusts option better reflects an “us against the world” value, if romance is indeed a factor. So then, what’s the good, the bad and the ugly with the joint trust?
In general, Joint Trusts works better in community property states (mostly out west). They can also be used in first marriages where the distribution scheme, beneficiaries, and ees are all going to be the same for each spouse. And even then, they are not necessarily the better choice.
- Ease of administration, especially where spouses already operate out of accounts/finances (or coordinating closely despite separate accounts)
- Community property (i.e., property acquired during the marriage in a community property state) is afforded a 100% stepped-up basis on the death of first spouse, even if the couple are no longer in a community property state. This does not work in separate s, so this is a big advantage for couples with community property.
- Can be funded with property, community property and/or solely owned property. In separate s, re-titling of assets is sometimes needed in order to properly fund the s.
- In some cases, there is asset protection for property/accounts held in tenancy by the entireties (but this is true despite the , not by virtue of it).
- In order to avoid some complicated gift tax repercussions, the must give each spouse the right, during life, to withdraw his/her own property at any time without the consent of the other spouse. This is not much of a negative, I point it out mostly for awareness.
- Under a , the assets must be legally divided at the death of the first spouse which creates some administrative work - nothing too significant. With separate trusts you do this at the front end, when the trusts are created.
- Complex drafting is required to achieve differing distributions to beneficiaries at the death of each spouse (not an issue where both spouses have identical plans).
- Estate tax planning is a little more complex but still easily doable.
Separate Revocable Living Trusts:
I know, I know – the words “separate” and “marriage” seem at odds, don’t they? Not true in the world of revocable trusts where “separate” protects us from one another’s risks in order to buttress the marriage from the ugliness of the outside world (lawsuits, creditors, conniving family members, to name a few). Let’s jump in.
Separate Trusts are the more common approach as they provide additional asset protection and allow for variance in the spouses’ distribution scheme, beneficiaries, and trustee selections. They also allow for more sophisticated options like protecting assets for the surviving spouse and preserving assets for the children.
- Asset protection can be a significant advantage as the assets in each spouse's separate are often protected from the creditors and claims of the other spouse. This provides broader protection than a .
- Preserves the deceased spouse’s ability to control his/her assets after death; For example, the deceased spouse’s assets can remain in trust, providing access to the surviving spouse while simultaneously being protected from gold-digging second spouses, lawsuits, creditors, and other risks. This has the added benefit of preserving some of the assets for the kids when the surviving spouse passes.
- Maintains the surviving spouse’s ability to control the assets in his/her trust. By contrast, a becomes irrevocable upon the death of the first spouse and the agreed-upon plan is set at that point.
- Management flexibility – during their joint lives, each spouse can manage his/her own assets while serving as co- ee on their spouse’s for simultaneous management of the entire marital estate.
- Ease of administration upon the death of the first spouse. Unlike a , there is no segregation work to be done on the assets when the first spouse passes.
- Each spouse has the complete freedom to designate their own distribution scheme, beneficiaries, and ees. As mentioned above, each can provide for the surviving spouse while leaving something for the kids/friends/charity. This can also be done in a but it’s more complicated.
- Separate s protect each spouse’s assets from access by a surviving spouse’s (possible) future spouse (and that future spouse’s kids/family).
- Easier to do estate tax planning in separate s (but can be achieved in s too).
- There’s a bit more of an administrative burden upfront unless the spouses are already used to operating out of separate accounts/finances.
The author is GuideOn Legal Services (GLS) founder Jack Grimes, a military veteran, former Intelligence Community executive, and JAG Corps Reserve Officer with over 20 years of experience in estate planning. He is among a limited number of attorneys in the country with an LL.M. (Master of Laws) in Estate Planning and Elder Law. The GLS motto Live Long, End Strong® epitomizes the full life-cycle approach Jack and the GLS team take to estate planning. It starts with the end in mind, and then builds a lifetime and legacy plan, culminating in the peace of mind that comes with protecting your family's future by preserving assets from taxes, probate costs, legal issues, and unnecessary financial risk.