When setting up Revocable Living Trusts, married couples can either have separate Trusts for each spouse or one Joint Trust. Absent complex tax planning needs (as would be the case if, for example, your estate was close to or beyond the current Federal estate tax exemption amount), the choice of whether to have separate or joint Trusts depend on a few things.

Joint Trusts

Most of your assets are owned jointly. If you and your spouse own your assets separately and would like to keep it that way, then a Joint Trust would not align with your goals. If you and your spouse already own most or all of your assets jointly, then a Joint Trust should be fine. Regardless of whether you do separate Trusts or a Joint Trust, you would still have to “fund” your Trust with your assets by retitling the assets into the name of the Trust and updating the beneficiary designations for your payable-on-death accounts.

Ease of administration after first spouse to dieAnother reason why many married couples want a Joint Trust is the ease of administration after one spouse dies. The assets of the first-spouse-to-die stays in the Trust (assuming they were properly funded into the Trust when set up) and the surviving spouse may not have to transfer any assets.  On the other hand, if there were separate Trusts, then the assets of the first-spouse-to-die must be transferred from his/her Trust to the surviving spouse and/or his/her Trust.

Costs less to prepare. It does cost less to prepare one Revocable Living Trust then it does to prepare two Revocable Living Trust.

Separate Trusts

Most of your assets are owned separately and you intend to keep it that wayIf you and your spouse own most of your assets separately, and you want to keep it that way in order to maintain control, then you will want separate Trusts. Or perhaps you are in a second marriage with blended family members or there is a prenuptial agreement in place, in which case separate Trusts would better serve your interests. Or maybe you have your own assets acquired before or during the marriage that you’d like you keep separate, such as business interests or a gift or inheritance.

Maximum control over assets and distributionControl and trust are main factors that married couples take into account when deciding to have separate Trusts or Joint Trusts. With a Joint Trust, when one spouse dies, the Trust does not become “irrevocable,” meaning it can still be amended by the surviving spouse. If, for example, you and your spouse are in a second marriage and have a blended family with children from previous relationships, then you may prefer to keep the assets separate to ensure that your own children or family members receive what you intend for them to receive without the risk of the surviving spouse changing your plan after your death. It is a touchy subject, but it does boil down to whether you trust your spouse to continue to abide by your wishes after your death.

Creditor protectionSeparate trusts might provide better creditor protection. If, god forbid, you were sued and there was a judgment against you, then only the assets in your separate Trust could be at risk of attachment. You would not want your entire marital assets to be at risk. So if you and your spouse, for example, worked in a high risk occupation, such as doctors, then I would recommend separate Trusts.

 

 

 

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