If you’re preparing to get remarried, your estate plan likely isn’t top of mind. However, depending on the state you live in, your spouse has property rights that apply regardless of the terms of your estate plan. These rights are the same whether it’s your first marriage or subsequent. Let’s take a closer look at spousal rights and some strategies you may be able to use to limit them.
Understanding your state’s laws
Spousal property rights are creatures of state law, so it’s critical to familiarize yourself with the laws in your state to achieve your planning objectives. Most states provide a surviving spouse with an “elective share” of the deceased spouse’s estate, regardless of the terms of his or her will or certain other documents. The remaining states (except Georgia) are community property states.
Generally, a surviving spouse’s elective share ranges from 30% to 50%, though some states start lower and provide for progressively larger shares as the duration of the marriage increases. The most significant variable, with respect to planning, is the definition of assets subject to the surviving spouse’s elective share rights.
In some states, the elective share applies only to the “probate estate” — generally, assets held in the deceased spouse’s name alone that don’t have a beneficiary designation. In other states, it applies to the “augmented estate,” which is the probate estate plus certain nonprobate assets, such as revocable trusts, life insurance policies and retirement or financial accounts that pass according to a beneficiary designation or transfer-on-death designation.
By developing an understanding of how elective share laws apply in your state, you can identify potential strategies for bypassing them.
Elective shares are designed to protect surviving spouses from being disinherited. But there may be good reasons for limiting the amount of property that goes to your spouse when you die. For example, your spouse may possess substantial wealth in his or her own name. Strategies for minimizing the impact of your spouse’s elective share on your estate plan include:
Making lifetime gifts. By transferring property to your children or other loved ones during life (either outright or through an irrevocable trust), you remove those assets from your probate estate and place them beyond the reach of your surviving spouse’s elective share. If your state uses an augmented estate to determine a spouse’s elective share, lifetime gifts will be protected so long as they’re made before the lookback period or, if permitted, your spouse waives the lookback period.
Transferring assets to a revocable trust. In most (but not all) probate-only states, transferring assets to a revocable trust is sufficient to shield them from your spouse’s elective share. In augmented estate jurisdictions, the elective share generally applies to revocable trusts.
Purchasing life insurance. Life insurance can be a great way to create wealth and liquidity for your children or other family members, and in probate-only states it’s generally shielded from your spouse’s elective share. Augmented estates usually include life insurance, but in some states, it may be possible to exclude it by holding it in an irrevocable life insurance trust.
Retitling assets. In probate-only states, you may be able to protect assets by holding them jointly with a child or other family member with right of survivorship.
Having your spouse sign a waiver. One thing most elective share states agree on is that your spouse can waive his or her elective share in writing, either through a standalone waiver or as part of a broader prenuptial or postnuptial agreement.
Check beneficiary designations on retirement plans and other accounts and be sure that they name your children or other intended beneficiaries. Keep in mind that changing certain beneficiary designations requires your spouse’s consent.
Elective share laws are complex
If you’re remarrying, consult with your estate planning advisor to evaluate your state’s elective share laws. He or she can explain how they may affect your estate plan and what strategies you can use to protect your assets.