Klenk Law

Estate Planning and Marriage

Marriage can be an exciting time! You have planned the big day: venue, flowers, dress, theme, gifts for the bridal party, beef or chicken, DJ or band. But with marriage comes other responsibilities and legal changes. These changes, while potentially daunting, need be addressed. Marriage and Estate Planning is one of these changes. Your Estate Plan now includes an additional person. We are happy to walk you through your options in person, feel free to call us! Meanwhile, here is a short introduction to some typical estate issues that arise with marriage and Estate Planning.

Marriage and Estate Planning: Before the Wedding

  • Prenuptial Agreements: Marriage is about love, but it is also about business. The state hands you a prenuptial agreement, or you are free to work out a deal that best fits your particular relationship. For more, please read our articles about Prenuptial Agreements.
  • Irrevocable Trusts: It might be better for you to shift assets out of your name before the marriage. This preemptive act helps protect them from future creditors and if your marriage is unsuccessful, from your spouse in case of divorce. Further, you can use an Irrevocable Trust to hold assets for children from a prior relationship safely. For more information, read our section about Irrevocable Trusts.
  • Revocable Trusts: A Revocable Trust can be a useful tool when you don’t wish to give up control over an asset, but you want to document that you entered the marriage with the asset and to separate these assets from your marital assets.

Marriage and Estate Planning; What If You Do Nothing?

Spousal Elective Share: If you have not addressed these rights in your Prenuptial Agreement, each state gives a spouse the right to claim a portion of their deceased spouse’s estate.

  • In Pennsylvania, a surviving spouse may exercise an Elective Share to one-third of the estate property. The Elective Share applies even if your Will excludes your spouse. Speak to an experienced Probate Attorney before electing to take the statutory share because, by taking the elective share, may forfeit rights to properties in any trust created by the decedent.
  • In New Jersey, unless waived in a Prenuptial Agreement, a surviving spouse is also entitled to an elective share of one-third of the estate property should the deceased spouse disinherit the surviving spouse. To claim the spousal share, the surviving spouse must file a complaint in the Superior Court of the county in which the executor was appointed. This must be done within six months. It is recommended you speak with an attorney if you decide to make this election, as this is a complicated area of the law. An election without understanding the nuances could lead to unintended consequences.

Intestacy, Having No will at Death: If you have no plan, then your assets pass under the State’s plan. Without a Will, there are no protective trusts. Further, your spouse or your children may receive more than you intend. A Will allows you to craft a plan that reflects your true wishes. The Intestacy Rules do not take your wishes into consideration.

Marriage and Estate Planning; After the Wedding

Estate Planning: Marriage allows spouses to work as a team. Married couples may use estate planning methods to shelter assets for the surviving spouse. For example, a Disclaimer Trust allows your spouse to decide after your death to take assets or to disclaim them into a protective trust. This Disclaimer Trust provides shelter from future creditors and future spouses. Marriage ushers in need for Estate Planning. Estate Planning can protect your surviving spouse, beneficiaries, and heirs; plan for illness or disability; preserve your estate; avoid probate; avoid disputes; making your will “Will Contest proof”. Let’s talk!
Will: If you have no Will, the state decides where your assets pass at death. Further, an intestate estate provides no protective trusts for your spouse or heirs.
Revocable Trust: For married couples, a Revocable Living Trust has many purposes. To learn more, follow this link to Revocable Trust in depth. But, they are especially useful for those in second marriages who wish to have children from the first marriage involved in overseeing their assets. Also, a Revocable Trust allows you to keep your assets separate from your spouse’s. Further, your retain the right to manage and spend your assets as you wish, but you can allow your child the independent right to administer the trust.
Irrevocable Trust: An Irrevocable Trust is an excellent tool to protect assets from creditors, keep assets separate from your spouse’s assets, reduce estate and inheritance taxes and remove property that might cause a dispute between your spouse and children at your death. Irrevocable Trusts address many different situations. For more, read about these versatile tools:

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As you can see, marriage and estate planning go hand-in-hand. If you have any questions about estate planning, feel free to contact us to set up a free consultation with Peter Klenk. Learn more about our Estate Planning Process HERE.

For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain the process clearly and concisely. We make it easy for you to understand Estate Planning so you can make the best decisions for yourself and your family.

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