With the Supreme Court overturning Roe v. Wade last week, many people are concerned that other fundamental privacy rights are in jeopardy. If you are in a same-sex marriage and you are worried about the Supreme Court overturning Obergefell v. Hodges, or if your spouse is a different color than you and you are concerned about the Supreme Court overturning Loving v. Virginia, you can take steps to protect some of your marital rights through estate planning. While estate planning cannot protect all of your rights, we urge you to take steps now to protect those marital rights that can be protected.
What Estate Planning can do
Marriage has financial and legal consequences, conferring both rights and responsibilities on spouses. Here are some of the rights you receive on your wedding day that you can also give your spouse by creating estate documents and not relying on the legislature or courts:
To inherit from your spouse through intestate succession;
Family allowance in a probate estate;
Priority in choice of Executor for your spouse’s probate estate;
Opportunity to continue residing in the family home throughout a probate;
To make some health care decisions.
Intestate succession and family allowance
By naming your spouse as a Beneficiary in your Will or Trust, your spouse will not need to rely on intestate succession or a probate family allowance to receive a portion of your estate.
When the California Trusts Online questionnaire asks for the names of your Beneficiaries of your Will or Trust, simply add your spouse’s name. A few pages later you will be asked for the percentage of your estate that you want your spouse to inherit from you.
Priority in choice of Executor
By naming your spouse as your Executor in your Will, you do not need to rely on their statutory right of priority.
To nominate your spouse as your first choice of Executor in your Will or pourover Will, on the California Trusts Online questionnaire choose to have your first choice Executor serve as a sole Executor and then enter your spouse’s name.
Continuing to reside in a family home
By placing your home into a Trust and giving your spouse the right to reside there, even if your marriage rights are rescinded, your spouse will not have to move on your death even if you are the sole owner of your home. You can do this by making a specific gift of the right to reside in your home and then transferring it into the Trust through a deed.
If you want to give your spouse the right to reside in your home for the duration of your spouse’s lifetime without paying rent to live there, list your spouse as a Beneficiary of your Trust. On the next page, when the California Trusts Online questionnaire asks if you want to make any specific gifts, choose “yes,” select your spouse as the Beneficiary, and type:
“If we are living together at the date of my death, I give [enter your spouse’s name] the right to reside in our residence without paying rent for the remainder of [his/her/their] life.”
You may want to add a sentence requiring your spouse to pay for utilities, maintenance, property taxes, mortgage payments or insurance. Also, consider whether your spouse has the resources to pay for these expenses or if you need to leave your spouse a percentage of your estate to help pay them. You can leave your spouse a percentage of your estate on the following questionnaire page.
Making health care decisions
By naming your spouse as you Agent in an Advance Health Care Directive, your spouse can make critical health care decisions for you even if the Supreme Court rescinds your right to be married.
To name your spouse as your first choice to make your health care decisions when you can no longer make those decisions for yourself, purchase an Advance Health Care Directive. When filling out the California Trusts Online questionnaire, choose the option of having Agents as opposed to only instructions, then select “choose order of Agents” and choose to have one first choice Agent. Then enter your spouse’s name when asked for your first choice of Agent.
Limitations of Estate Planning
There are some governmental benefits and tax benefits conferred on married couples that cannot be granted to spouses through estate planning documents. These include the following:
Survivor benefits for social security;
Veteran survivor benefits;
Protection from Medicaid estate recovery;
Unlimited marital deduction (gifts between spouses); and
Portability of a spouse’s unused federal estate tax exemption.
If you are ready to protect your marital rights that can be protected, click here to start your estate planning documents today.
Click here to read our blog post on how California Trusts Online uses inclusive language.