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November 23, 2001: Directing Your Assets upon Death

Q. After I am gone, I don't want some gold digger to end up with my property or even worse, I don't want my assets ending up on my spouse's side of the family. If I leave everything to her (which I want to do), I can see her changing her will after I die. What do you suggest?

A. I don't know why but I seem to get a lot of these kinds of questions during the holidays. But let's explore your concerns and remember this answer is intended to be gender neutral, since it works both ways.

If your spouse is on the title of an asset that you consider "your property", your spouse is the owner, along with you, of half of that asset. Thus, you already may have lost the right to control your spouse's half interest.

Now the easy answer would seem to be to put all of "your property" back in your name. But unless the two of you have executed a nuptial agreement, your spouse has an "elective share" which gives each spouse the right to inherit half of the property of the other regardless of what your will or your living trust says.

Technically, the law was changed a few years ago so that now a spouse would not have the right to inherit half of the other's property immediately following marriage. One-fifth of the one-half elective share right vests each year of marriage until after the fifth year the one-half right is fully vested. For example, during the first year of marriage a one-tenth right (1/5 x 1/2) to inherit vests. During the third year three-tenths will have vested ((1/5+1/5+1/5) x 1/2)) After the fifth year, one-half vests outright. (This was to prevent marriages where the new spouse inherits half if the other dies soon after marriage).

Thus if your spouse's name is on "your property", and with the elective share affecting the remaining half of the property in your name, the true percentage of property may be one-fourth of what you started out thinking you could control.

At this point, the best way to insure that "your property" passes the way you wish would be to set up a trust, either in your will or inside your living trust. After death, the trust assets would be available to provide for your spouse, but the assets remaining after the trust ends would go the way you indicated in the trust. Your spouse could not redirect them in his or her will.

You would need to be careful because if this year more than $700,000 went into the trust, an estate tax would have to be paid on the excess. So the trust would need to be adjusted to qualify for the marital deduction (like a QUTIP trust as an example) or constructed so $700,000 would be placed in one irrevocable trust at your death and the remainder into a tax qualified trust to utilize the marital deduction. (This is sometimes call the A trust and the B trust arrangement.)

However, you can do all of these things but if your spouse is named your beneficiary or holds title in joint tenancy with rights of survivorship, then he or she will receive those assets directly and nothing will be available to be placed in the trust because those designations take priority over your will. At the very least the beneficiary designation needs to be changed so proceeds can be payable to either your estate or to the trust. And if the spouse's name stays on title, then the property should be held not in joint tenancy but tenants in common.

So what do you need to do? Well, execute a nuptial agreement whereby your spouse gives up his or her statutory right to receive half of "your property", put all property back in your name, and have a will done with a trust receiving your bequest instead of leaving everything directly to your spouse under a typical will or living trust. But also remember you need your spouse's cooperation at this point.

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