One of the first things estate planning attorneys ask when a couple begins basic estate planning is whether a revocable living trust (RLT) is appropriate for their situation. If utilizing an RLT is appropriate, a key follow-up issue for married couples should be whether they should utilize a combined RLT or separate RLTs.
Revocable Living Trust
A revocable living trust (RLT) is a trust that an individual creates during their lifetime. The grantor can change the ownership of their accounts and property at any time until they die. An RLT also allows the grantor to continue enjoying their money and property during their life.
Separate RLT vs. Joint RLT?
In community property states, married spouses may wish to consider using separate RLTs. Because community property ownership provides considerable tax benefits, most married couples employ a combined RLT. However, in some cases, married couples may need to consider separating their RLT trusts.
When Would a Couple Use Separate RLTs?
While joint RLTs provide tax benefits for those in community property states, there are several good reasons to consider using separate trusts regardless of whether the couple lives in a community property state.
Asset Protection: Keeping the property in separate RLTs during a marriage can make it more difficult for creditors to access them. In one case in Utah, a company sued a husband in an attempt to foreclose on his family home due to a guarantee he made to get building materials. The couple had decided years before to transfer their home into the wife’s separate trust.
Access of Administration at Death: After the death of a spouse, it can be challenging to administer the property of a joint RLT. Trust administration could be very simple if all of this work were done when the spouses funded their separate RLTs.
Blended Family Advantages: Separate RLTs may be needed for couples who want to keep their property separate from extended family. Using a joint RLT introduces a much greater potential for confusion.
Conclusion
As you can see, using separate RLTs in a marriage can make perfect sense in some situations and offer many benefits:
- simplify trust administration after one or both spouses pass away
- clarify the division of property in remarriage or blended family situation
- provide enhanced asset protection for married couples
For situations where separate RLTs may be appropriate, please contact us. Let us help you with your estate planning by discussing the pros and cons of using separate or joint trusts in your state.
