When you marry, often your spouse promises to “have and to hold” and “to love, honor and cherish until death do you part.” But your wedding vows probably didn’t require your spouse to commit to a joint estate planning process. What happens when you want to engage an attorney to prepare your estate planning documents, but your spouse refuses to participate?
It happens. A married person might refuse to engage in the estate planning process with their spouse for numerous reasons, including a failure to recognize the importance of estate planning, fear of addressing issues related to death, a desire to avoid an unpleasant disagreement with the other spouse regarding how certain estate planning issues should be handled, a wish to keep certain assets or estate distributions private from the other spouse, a lack of trust in their spouse, or a lack of confidence in the marriage itself.
For a spouse facing this challenging situation, here are some factors to consider:
- Spouses Can Complete Estate Planning On Their Own. Dying intestate is not a desirable option. Even though accomplishing comprehensive estate planning can be challenging when one spouse won’t participate, at the end of the day, something is better than nothing. A married person can still work with counsel to ensure basic estate planning documents including a Will, General Durable Power of Attorney, Durable Power of Attorney for Health Care Decisions, a Health Care Directive, Memorial Instructions, and other needed documents are in place.
- No Community Property Agreement. An estate planning attorney may recommend a Community Property Agreement based upon the couple’s asset level and desire to distribute all assets to the surviving spouse upon death. However, a Community Property Agreement will be off the table unless both spouses agree to sign it. Because of this, a probate may potentially be required at the death of the first spouse – a result that might have been avoided if a Community Property Agreement had been executed.
- Estate Tax Planning Will be Problematic. If the couple has a taxable estate, an estate planning attorney may recommend that trusts, such as a disclaimer trust, be used to limit estate tax liability. If one spouse refuses to engage in estate planning, and that spouse is the first one to pass away without putting any mechanisms in place to fully utilize his or her estate tax exemption, the surviving spouse may face much more complexities and potential liabilities in his or her efforts to minimize estate tax obligations than if both spouses participated together in the estate planning process.
- The Surviving Spouse Retains a Statutory Right to Manage the Community Property. The spouse who participates in estate planning can nominate agents other than their spouse in relation to their powers of attorney; but regardless of any nomination in the Will to the contrary, the surviving spouse maintains a statutory right pursuant to RCW 11.28.030 to manage the community property upon the death of the first spouse.
- The Participating Spouse Faces Uncertainties Upon the First Spouse’s Death. If the non-participating spouse passes away first, the spouse who engaged in estate planning faces uncertainties. Contrary to popular belief, the surviving spouse does not automatically receive everything because Washington is a community property state. If the deceased spouse has nothing in place, the surviving spouse may need to rely on some combination of intestate succession, the terms of a pre-nuptial agreement or marital agreement if such an agreement exists, and Washington’s homestead exemption in determining what assets they will ultimately receive. Further complications may exist if the deceased spouse executed “secret” estate planning documents without the survivor’s knowledge.
Do you have questions about your estate planning and concerns that your spouse will not engage in this process with you? If so, please let us know. We’d be happy to help.
This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.