Klenk Law

Estate Planning and the Non Citizen Spouse

If your spouse is not a US Citizen, you face all the common Estate Planning issues plus the potential complications raised by marrying foreigner. 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 when your spouse is not a US Citizen.

Documents to Consider Before the Wedding

Prenuptial Agreements: Marriage is about love, but it is also about business. Not all matches are successful, and the end of a marriage between people of different nationalities can raise complicated ownership and tax questions. Consequently, a Prenuptial Agreement is a must. If you don’t have your prenuptial agreement the state gives you a prenuptial agreement; you just don’t have a say in the terms. So, accept the State provided cookie-cutter 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: You may have assets you wish to keep separate from those of your spouse. Or, if you have children from your prior marriage, you may have assets you want to keep apart for their benefit. An Irrevocable Trust is an excellent tool to hold assets, sheltered from creditors and divorces. Forming and funding this trust before your wedding is a great strategy to keep these assets from becoming entangled in your future marriage. In addition, this preemptive act helps protect these assets from your future creditors and if your union is unsuccessful, from your spouse. 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. Is a Revocable Trust Right for You? Read more in our Revocable Living Trust article.

What Happens If You Don’t Have a Will or Estate Plan?

Spousal Elective Share

If you have not addressed these rights in your Prenuptial Agreement or Postnuptial 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. To claim the spousal share, the surviving spouse must within six months file a complaint in the Superior Court. Speak with an experienced Probate Attorney before making this election. Elective Share elections are a complicated area of the law. An uninformed election 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. This plan might subject your estate to high death taxes. Also, without a Will, there are no protective trusts for your spouse or children. Further, your spouse or your children may receive more or less than you intend, leaving your wishes disregarded. A Will allows you to craft a plan that reflects your real desires. The Intestacy Rules do not take your wishes into consideration.

Documents to Consider 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. Further, a married couple can use their status to create protection for children that would not otherwise exist. Therefore, 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 “contest proof.” Let’s talk!

Typical Documents Addressing Death

Will: Without a Will, the state decides where your assets pass at death. The State provides no protective trusts and disregards your wishes.

QDOT, Qualified Domestic Trust: Follow the link for more details. A QDOT helps avoid Death Taxes if your estate is large enough.

Addressing Assets Overseas: The IRS considers all assets, worldwide, as part of your estate. Other countries take a different view. Tax treaties exist that may affect your planning, and many countries require real estate to pass under local rules. If you have assets overseas, careful planning can avoid substantial legal and tax headaches.

Funeral Arrangements: Disputes erupt between children from first marriages and new spouses regarding funeral arrangements and the location of your burial. Naming the right person or persons to control these decisions in your Funeral Directive can avoid conflict.

Documents You Need Should You Become Incapacitated

Financial Power of Attorney: If you are unable to make decisions for yourself because of some accident or medical issue, who makes your financial decisions? This person may be your spouse, a child or two people working as Co-Agents. You can choose this team and avoid a court appointed Guardian with a Durable General Power of Attorney.

Medical Power of Attorney and Living Will: If you are not competent to make your medical decisions, who decides which doctor treats you or if medical care is withdrawn? You select this person by executing a Living Will and Medical Proxy. Review this power regularly.

Revocable Trust: For married couples, a Revocable Living Trust has many purposes. To learn if a Revocable Living Trust is right for you, follow this link to Revocable Trust in depth. In short, they are particularly useful if you have a second marriage and wish to have children from the first marriage involved in overseeing assets. Further, a Revocable Trust allows you to keep your assets separate from your spouse’s.

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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If you have any questions about estate planning when your spouse is not a US citizen or any other estate planning topics, feel free to contact us to schedule a free consultation. 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 complex estate planning techniques 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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