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. 

In the course of a trust administration, beneficiaries primarily want to know what will be distributed to them and when it will be distributed. Attorneys who represent trustees, however, must prevent trust distributions until the proper time—that is, until all liabilities have been paid or reasonably accounted for with a reserve. Otherwise, a trustee may face personal liability and need to seek indemnity from beneficiaries who may have already spent the funds distributed to them. In a postdeath administration, there may be trust and nontrust liabilities (or the decedent’s liabilities), including the decedent’s debts and various taxes. In addition, a trustee must pay the expenses of the administration or reserve funds for payment of those expenses.