Written by  Kim Kamin, JD, AEP® (Distinguished) and Cynthia D.M. Brown, JD, STEP

Estate planning today involves more than just drafting technically sound dispositive documents. Clients increasingly want their estate plans to reflect their values, guide future generations, and anticipate evolving family structures. At the same time, trustees, particularly corporate fiduciaries, are administering long-term discretionary trusts under heightened scrutiny in complex regulatory environments.

By Phoebe Stone, JD, MA (Bioethics) 

When creating an estate plan for a married couple, there are many ways to plan for its division into marital and nonmarital shares upon the death of the first spouse. The circumstances and the client’s wishes (as informed by your professional guidance) will dictate the most appropriate design. For example, planning for couples of very modest means will likely include different choices than planning for high-net-worth couples; planning for an elderly couple in a decades-long marriage who have only shared children may look different from planning for blended families. To best serve your clients, it is critical that you understand the options available and are able to communicate the benefits and burdens associated with each option in ways your clients will understand so that your expertise can appropriately guide their choices.

There are many ways to provide for a married client’s surviving spouse after the client’s death. This type of estate planning is often referred to as marital share funding. Spouses may use various marital share funding options in either will- or trust-based estate plans. Their goals may include estate tax planning, probate avoidance (especially when using a trust-based plan), and incapacity planning. Disclaimers can be used when planning for estate taxes and may be particularly helpful in other situations relevant to married clients.