Estate Planning for Modern Families

Traditional estate plans don’t work well for many families these days. A traditional plan is for couples who are in their first and only marriage and have only kids from that marriage. Different plans, tools, and strategies might be needed for people with other life stories.

Let’s start with planning for the single person. Many people now are unmarried for a substantial part of their adult years. They might be widowed, divorced, or never married. They might be in relationships that don’t include legal marriage.

Several issues are the same for all of them.

The first focus of a single adult’s estate plan should be to ensure that someone competent will manage the property and other matters if the individual is unable to. The best solution usually is a durable financial power of attorney or a living trust or both.

You also need a medical directive, which can include a medical power of attorney, living will, and other instructions. These documents designate one or more people to make decisions about your medical care when you aren’t able to. We don’t have space here to discuss these in detail. Detailed discussions are on the Retirement Watch members’ web site.

These tools also are important for traditional couples, but they are more important for others. State and federal law often provide some protection and presumptions for married couples but not for others. As with married couples, the key to making these tools work is naming the right people to make the decisions for you and being sure the documents properly empower them.

Surprisingly to many, you’re also likely to need a document naming people who can visit if you are in a hospital or other facility. This might be in the medical directive or a separate document. Many medical providers now interpret federal privacy law to restrict access only to family members unless there is a clear statement from the patient.

Long-term care insurance or some other plan for long-term care might be more important for an unmarried person than for a married couple. A single person doesn’t have a spouse who might be able to assist him or her. While Medicaid will pay for nursing home care while allowing you to retain some assets, a married couple usually is allowed to retain more assets than a single person. In addition to a single person’s being able to retain fewer assets for a legacy, the assets of any partner of the single person might be endangered under Medicaid, especially if the assets are owned jointly.

Those are common issues for all single persons and others in non-traditional families. Now, let’s look at different situations they might face.

Unmarried estate planning candidates fall into three categories: Those who have children from a previous marriage or relationship; those who never had children; and those who are part of a couple but won’t be getting married or whose state doesn’t recognize their marriage. The categories can overlap, but each category has some unique challenges.

As with a married person, a single person who passes away without a will has the disposition of the property determined by state law. If there are biological children, in most states the property will be divided equally among the children. If there are no children, the disposition can be very unexpected, depending on the state and which relatives are alive. The property could go to half-siblings, cousins, or nieces and nephews. Single adults, especially those without children, are more likely to have nonfamily and charities as objects of affection and so prefer a disposition different from that offered by state law.

Issues about children from more than one relationship and nonbiological children are discussed later with patchwork family issues.

With a traditional couple in these situations, the solution is to draft a will, but single people might prefer having most assets pass through a revocable living trust. Depending on the state, the probate process for a will might require notice to everyone who would have been eligible to inherit if there had not been a will. For an unmarried person, especially one without children, that can mean constructing a family tree and proving the demise or divorce of extended family members.

Property in a living trust avoids probate, and the terms of the trust determine who inherits the property. A will still is needed because it might not be possible to transfer all property to the trust, but the living trust might minimize delays and costs.

Another key issue for singles is the choice of an executor or successor trustee when there is no spouse or adult child to take the role. There might be friends or family members who are able and willing to handle the position. Otherwise, a trusted advisor, such as an accountant or attorney, might be the best choice.

There are a number of assets that aren’t covered by a will or living trust. These assets include IRAs, retirement plans, annuities, and life insurance. Singles need to decide who they want to benefit from these assets, complete their beneficiary designation forms, keep copies of the forms, and update the documents when appropriate. The executor of your estate needs to know about these assets and where to locate your records.

Taxes are an interesting planning issue. The income tax law can be more generous for unmarrieds, but the estate tax is less generous to singles than to married couples.

Often a married couple pays higher income taxes than two single people with the same incomes. Partly for that reason, some seniors choose to live together without getting married. Staying unmarried allows them to file separate returns, and a couple might be able to shift some deductions to the one in the higher tax bracket.

Under the estate and gift tax, singles do not have the advantage of the marital deduction. An unmarried person still can use the annual gift tax exclusion, make unlimited gifts for education and medical expenses, and use the $5.34 million lifetime estate and gift tax exemption. The lack of a marital deduction now matters only to fairly wealthy unmarried seniors, but for them it does limit the after-tax amount that can be left to noncharitable beneficiaries. For them, life insurance might be more attractive than it is for married couples.

The annual gift tax exclusion can be used to benefit anyone. Those without children often use it to benefit nieces, nephews, and other relatives.

Care must be taken when using the lifetime gift tax exemption amount. It often is better to make gifts early as long as sufficient assets are retained to support the standard of living. Yet, the objects of affection might change over time, especially in nontraditional families. So if the exemption is used early, be sure the recipients of the largess are likely to be permanent objects of affection.

For many single seniors, especially those without children, a legacy of charitable giving is more important than it is for marrieds. The singles’ estate plans might contain more charitable gifts than others. In addition, they might make more lifetime use of strategies such as charitable trusts to generate current income tax savings and income during their lifetimes, reduce the size of their taxable estates, and leave charitable gifts.

Social Security and pensions leave few options. Social Security does not allow designation of a beneficiary other than the spouse, and a number of employer pension plans have the same restriction. The main options to replace this income for a surviving loved one who is not a spouse are to buy life insurance or have other assets to leave the person. Another possible strategy is to place assets in a charitable remainder trust that pays income to a beneficiary for life or a period of years, and then the remaining assets go to charity.

The population of single adults is increasing, and it faces unique estate planning challenges. These individuals should be sure to work with an estate planner who understands their special situations.

Another type of nontraditional family often is called a “patchwork family.” These are families in which at least one spouse is in a second or later marriage and there are children from one or more of the marriages or other relationships.

Estate planning issues generally are important in these families. The spouses usually want to provide for each other. But they might have different objectives beyond that.

A common situation is that a spouse wants his or her assets to provide for the surviving spouse during his or her lifetime, but wants any remaining assets eventually go to his or her biological children. There often is a concern that if property is left outright to the surviving spouse, the assets ultimately might not be distributed among the children as desired. Also, when there are children from more than one relationship, there might be a preference to favor one set (such as the younger children) over the other. Some people want to provide for stepchildren, while others don’t.

For patchwork families, trusts are the usual way to resolve these issues. The primary goal of the trusts isn’t tax reduction. Instead the trusts are used to control how the property is managed and distributed over time. The terms and number of the trusts vary based on the family situation. There might be one family trust or separate trusts that filter down to different members or branches of the family. The estate owner needs to determine his or her goals and have the estate planner write a plan that best meets those goals.

The downside to using trusts is that you probably can’t make full use of both spouse’s lifetime estate and gift tax exemptions. That’s not an issue for most families, because of the $5.35 million individual exemption, but can result in trade offs for wealthier families.

Patchwork families also seem to have more will contests and other disputes than do traditional families. This risk can be reduced if the spouses sign a premarital or postmarital agreement. Otherwise, if you have only a will, it is easier for your spouse or even your spouse’s children to challenge the terms. Also, let your children know generally how you intend to distribute the assets between the families. If you state this at the outset, it becomes much more difficult for one of them to challenge the plan.

When it’s a second or later marriage, the spouses almost certainly should have separate attorneys for their estate plans. There are just too many potential conflicts for one attorney to serve the two spouses. In addition, to avoid potential conflicts and suspicions, many estate planners recommend that you give your durable power of attorney, health care proxy, or living will to one or more adult children or other people instead of your spouse.