Estate planning is complicated without everyone onboard.
You know you need an estate plan.
If fact, you are wanting to start the process now.
There is one problem.
Your spouse refuses to discuss estate planning.
According to a recent nwi.com titled “Estate Planning: Can one spouse plan?,” this is not ideal.
Talking about your incapacity and death is not pleasant.
I get that.
The results of neglecting such planning are even more unpleasant.
If one spouse is willing to move forward, this individual should schedule an appointment with an experienced estate planning attorney.
In most cases, estate planning attorneys prefer to work with both spouses.
Most married couples have intertwined estates, to include their jointly owned property and beneficiary designations.
Even in these cases, an estate planning attorney will typically have a waiver signed by the spouses agreeing to have the attorney represent both of them.
If the second spouse still refuses to move forward with planning, the first spouse should not follow suit.
The plans may not be as effective, but they are better than nothing.
The two areas most likely to be impacted by a lack of joint estate planning would be the home and retirement accounts.
If the property is owned by both spouses in a way that passes to the other automatically at death, then this arrangement will avoid probate at the first death.
For example, property owned by both spouses as “joint tenants with rights of survivorship” in Kansas enjoys this outcome and the same holds true between Missouri spouses when title is held as
“tenants by the entirety” at death.
However, a unique feature of “tenants by the entirety” (other than it is not available to Kansas spouses) is that one spouse can make no changes to the title without the consent of the other.
Many retirement plans also require consent from the spouse to change beneficiaries to someone other than the spouse.
Although one spouse engaging in estate planning is better than no estate planning at all, you should remind the second spouse of the consequences of dying intestate.
Dying intestate means the assets will pass according to the laws of the state.
Perhaps your spouse will realize that the benefits of planning far outweigh the discomfort of facing facts.
Reference: nwi.com (Nov. 17, 2019) “Estate Planning: Can one spouse plan?”