Estate Planning: Can one spouse plan?
Estate planning

Estate Planning: Can one spouse plan?


Q: My parents are in their 70s and they don’t have anything planned. I’ve spoken with them about the importance of planning. My mom is willing to meet with an attorney, but my dad won’t even discuss it. If my dad won’t agree to meet with the attorney, can my mom meet with the attorney alone or do they have to plan together?

A: Planning your estate isn’t anyone’s idea of fun and, for some people, it’s almost painful. Facing your mortality is tough. It’s not a pleasant thought that one day your family will wake up to face the day and you won’t be part of it.

However, although it’s often an unpleasant task, it should be done.

If your father won’t agree to plan, your mother can plan without him. In fact, some attorneys prefer to only represent one of the spouses. Spouses’ interests aren’t always identical and conflicts can arise. When I represent a couple, I always get an acknowledgement from them that I represent them as a couple, not individually. In the event a disagreement arises or if their interests aren’t aligned, I advise them that I will need to withdrawal my representation and each of them need to obtain their own attorneys.

Now having said that, I prefer to plan for both spouses. Married couples’ estates tend to be intertwined. Property is often owned jointly or as husband and wife, or husband and husband or wife and wife, as the case may be. Spouses are usually named beneficiary of life insurance and retirement accounts. Even in blended family situations, the players are often the same for both parties.

If your dad won’t budge, your mom can and should still meet with the attorney and plan accordingly. Unfortunately, she may not be able to plan effectively for the two most common, and usually most valuable assets, that married couples own; the home and retirement accounts.

If the home is owned by the spouses as entireties property (Husband and Wife), she likely can’t make changes to the title without the spouse’s consent. One spouse can’t sever entireties property without both spouses agreeing. Also, some retirement plans that are subject to ERISA, may require a spouse’s consent to change beneficiaries to someone other than the spouse. However, even with these potential issues, I still think it’s in your mom’s best interest to plan. Something is better than nothing and she can likely plan effectively alone.

I wish I had an argument you could use to get your father on board, but there isn’t really one that you haven’t already likely made. I guess you could tell him that if he doesn’t make a plan, the State of Indiana will supply him with one. It has been my experience that no only likes the idea of Indianapolis meddling in their personal life. That may be enough to get him moving.

Good luck.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.


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