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Does My Spouse Need a Separate Estate Plan?

Married couples will usually make their estate plan together, especially if they hold most assets jointly and have the same goal to provide for their family’s future.  In that case, the surviving spouse would receive the majorityof assets as primary beneficiaryof a will or trust.

This make sense especially if there are minor children to care for, or ongoing expenses that have to be covered.  A couplecould create a joint trust to include all assets, and when one spouse dies the other would take over as sole trustee to administer the assets according to trust terms.

However, there may be situations where spouses elect to have separate estate planning documents, usually some type of trust.Those include:

Creating a separate trust to protect assets from the creditors of one spouse

If one spouse has creditors or liability, the other may be able to insulate some assets with a separate trust.

Separate trust with spouse as co-trustee to manage assets

Even when separate trusts are created, the other spouse can be named as a co-trustee to take over when the grantor spouse dies.

In a second marriage where one or both spouses have property acquired prior to marriage, or there are children from the previous marriage.

Second marriages are common, and any property acquired before remarriage would be separate property that a spouse may want to hold and distribute on their own.  They may want to designate different heirs from the first marriage as well.

One or both spouses receive or are expecting an inheritance they want to keep separate

If one spouse receives or is expecting to receive a large family inheritance, they may want to have a separate estate plan to keep that property on their side of the family.

There are no minor children as heirs, and the spouses want to designate certain assets differently

Spouses may wish to distribute separate assets to specific heirs for personal or financial reasons.

Potential tax benefits

There could be the potential for reducing estate taxes for wealthy couples with separate trusts.

Pre-nuptial agreements

Pre-nuptial agreements may affect how assets are designated and owned, and thus distributed after passing. 

Legally Separated

Couples that are legally separated, but not divorced, may want to have their own estate plan.


If you are a married couple and thinking of making an estate plan, the attorneys at Shoup Legal can guide you in creating either a joint or separate plan to meet your unique circumstances.  Contact the attorneys at Shoup Legal, A Professional Law Corporation at 951-445-4114 or visit them online at for more information.

Written by Andrea Shoup

Shoup Legal, A Professional Law Corporation can be reached at (951) 445-4114.

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