Unduly Burdening the Surviving Spouse.

          Some
married people seem to believe that their estate planning is sufficient if all
assets go to the surviving spouse at death and let the surviving spouse take
care of subsequent estate planning if they so choose.   People
taking this approach often title (own) their real property and bank accounts in
the form of jointly tenancy with right of survivorship; they designate each
other as their sole death beneficiary on retirement accounts, life insurance, annuities
etc.; and they name each other as the sole beneficiary in their wills.   

          Is
the foregoing approach sufficient?  In
the long run, not considering what happens after the death of the first spouse
is often nearsighted.  The surviving
spouse may be overwhelmed.  Let us
examine some important reasons why spouses need to plan together to protect
both the surviving spouse during incapacity and the family at the death of the
surviving spouse.

          Who
will take care of the surviving spouse if he or she is incapacitated?  If the surviving spouse is already
incapacitated when the deceased spouse dies, or later becomes incapacitated,
and does not already have the necessary legal powers of attorney in place
regarding financial, property, personal and health care decisions then a court
appointed conservatorship of the person and/or estate may become
necessary.  Such conservatorships may be avoided
had the incapacitated spouse authorized agents to act on his or her
behalf.  Durable powers of attorney for
finances, property and personal care and advance health care directives for
health care decisions enable authorized persons – often the children or other
relatives – to take charge of important affairs without going to court.  This saves time, money and trouble for all
concerned.

          Next,
what about the transfer of assets at the surviving spouse’s death?  While California law does not require a
probate to transfers assets from a deceased to a surviving spouse only, the
same is not true regarding transfers from the surviving spouse’s own estate to
the children or to anyone else, other than a subsequent spouse.  Most people want their loved ones to inherit
with the least amount of aggravation and cost and so choose to transfer their
assets into a living trust that will transfer assets to their intended death
beneficiaries either outright or in an ongoing trust, as desired.

          Some
married couples simply take it for granted that after the first spouse dies the
surviving spouse will be willing and able to actually take care of all necessary
estate planning.   Based on this wishful
assumption, some married people will not deal with long range estate planning.  There are numerous potential flaws with such wishful
thinking.  It is not uncommon for the surviving
spouse to procrastinate and for events to overtake him or her.   The surviving spouses may either already be incapacitated
when the first spouse dies or later become incapacitated, and thus unable to
execute estate planning documents. The surviving spouse might be more
vulnerable to undue influence coercion, unduly pressure or menace – either from
family or friends.  That is, the
surviving spouse under such influence may sign documents that really express
the self-serving wishes of other people.

          As a
general rule, therefore, it is good for married people (in a stable marriage)
to motivate each other to take care of long term estate planning that looks
beyond the death of the first spouse.  Expecting
the surviving spouse to get his or her affairs in order, only after the death of
his or her spouse, could amount to Russian roulette with the personal well
being of the surviving spouse.  It may
also jeopardize the desired and most efficient distribution of the estate to the
couple’s loved ones when the surviving spouse dies.