Most attorneys will recommend separate trusts for couples in separate-property states such as Virginia (as opposed to community property states such as California), although there are a few reasons why couples may want to consider joint trusts.
Reasons to Choose a Joint Trust Over a Separate Trusts in a Separate Property State
Joint trusts are consistent with clients’ view of marital assets
Many spouses see a joint trust as more consistent with their views of marital property. Instead of treating each asset as “his” or “hers,” all assets are viewed as “ours” by virtue of their inclusion in a single joint trust. This allows clients to avoid the sometimes-contentious process of deciding how marital assets should be divided to fund separate trusts.
Joint trusts involve the creation of only one trust instrument, which may save attorneys’ fees
Clients often view joint trusts as a cheaper alternative to a two-trust estate plan. Whether this will be true depends on the estate planning attorney’s fee structure. Drafting a joint trust can—in some circumstances—be a more time-intensive undertaking than drafting two separate trusts, and many attorneys charge accordingly. Regardless of whether the attorney actually charges less for a joint trust, many clients believe that the fees should be less because the attorney is only preparing one document instead of two.
Ease of administration during lifetime
If both spouses are bringing relatively the same amount of assets into the marriage and don’t have significant issues with creditors to worry about, a joint revocable living trust would be the easiest solution during their lifetimes. Creating a joint trust may save time and costs to set up and fund as they are typically more straightforward than setting up separate trusts. You may also save extra steps when it’s tax time each year by not having to have an individual tax return for your spouse’s trust and yours.
Reasons to Choose a Separate Trust Over a Joint Trusts in a Separate Property State
In separate-property states, separate trusts will often be the better choice for married couples with a sweetheart estate plan (at the death of the first spouse, all is left to the surviving spouse, then to the children at the death of the surviving spouse). The benefits of enhanced asset protection, ease of administration, and greater flexibility usually outweigh the psychological benefit of a joint trust.
Enhanced asset protection
As a general rule, assets held in a revocable trust are subject to creditor claims of the trust maker(s). Although this is true for both separate trusts and joint trusts, joint trusts have a disadvantage in that they keep all assets in the same trust. If a creditor obtains a judgment over either spouse, all assets in the joint trust are at risk for attachment by the creditor.
With separate trusts, each spouse’s assets are segregated into a trust for that spouse. If only one spouse becomes subject to a judgment, only the assets held by that spouse are at risk. The assets of the innocent spouse—which are held in a separate trust—are generally out of reach of the creditors of the spouse being sued. This means that separate trusts provide greater asset protection benefits over joint trusts in situations where only one spouse is liable to a creditor.
In addition to asset protection during the grantor’s life, assets in a separate trust are even more protected after the grantor of the separate trust dies. At that time, the trust becomes irrevocable, making it even more difficult for other beneficiaries or the surviving spouse’s creditors to reach the property held in the now-irrevocable trust.
Asset protection may be of special interest to doctors and other professionals at high risk of being sued for professional malpractice, who may benefit from the added asset protection afforded by separate trusts.
Ease of administration at death
One of the main problems with joint trusts is the inability to trace assets after one spouse’s death. As assets in a joint trust are bought and sold over time, it can become difficult to identify which assets are treated as belonging to which spouse. In community-property states, it can also become difficult to determine which assets are joint or community property and which are separate property.
This process frequently requires careful valuation of the property in the trust as well as executing new deeds for real property, retitling stock certificates, or establishing separate investment accounts to hold the deceased spouse’s separate property.
Tracing is especially difficult when joint trusts divide into separate trusts after the first spouse’s death. This requires the surviving spouse to itemize and value the assets that belong in each component after the first spouse’s death. Experience has shown that many surviving spouses simply do not go through this process, resulting in a commingling of assets that is impossible to unwind later.
Tracing can be important for both tax and non-tax purposes. For tax purposes, it is important to understand which assets are treated as belonging to the deceased spouse. This can have implications for both basis step-up and federal estate tax purposes. Similarly, if the spouses have different planning objectives, a commingling of assets or failure to separate the estate into separate trusts at death can alter the client’s non-tax estate plan.
Many of these issues can be avoided with separate trusts. With separate trusts, each spouse is treated as the owner of the assets titled in that spouse’s trust. Any changes in value or sales or purchases of assets are clearly delineated, regardless of whether they occur before or after the spouse’s death. This makes it much easier to identify the original ownership of the assets and the tax consequences that occur both before and after each spouse’s death. Trust administration after the death of the first spouse can be very simple and straightforward. The only tasks may be notifying the financial institutions of the grantor’s death and providing them with the trust’s new tax identification number in order to properly report tax issues going forward.
Flexibility and protection after death
Many joint trusts become irrevocable upon the death of the first spouse. Many clients are concerned that the spouse could remarry or favor one child over another. The purpose of irrevocability is to provide the first spouse with assurance that his or her estate planning objectives are ultimately achieved.
This assurance comes at the cost of lack of flexibility. If there are changes in the law, finances, or family dynamics after the first spouse’s death, joint trusts that have become irrevocable do not allow the surviving spouse to adjust the estate plan to accommodate these changes. Separate trusts, on the other hand, preserve the ability of the surviving spouse to alter, amend, or revoke the assets held in the surviving spouse’s trust.
At the death of a spouse, separate trusts are generally set up to allow the trust assets to be used as needed to support the surviving spouse under the “HEMS” standard (Health, Education, Maintenance and Support), but do not allow the surviving spouse to withdraw trust assets beyond the HEMS standard or redirect the assets of the trust. However, the surviving spouse still has full control over the assets in their own separate trust.
By comparison, a joint trust may be set up in one of three ways:
If separate trusts are used, rather than a joint trust, it is possible protect the deceased spouse’s trust assets from being redirected to a new spouse or new children should the surviving spouse remarry, and thus prevents the surviving spouse from disrupting the deceased spouse’s estate plan with regard to the deceased spouse’s assets, without limiting the surviving spouse’s control over their own separate assets in their own trust.
Remarriage and Blended Family Benefits
Couples who have been married before or who have children from another relationship may also benefit from using separate trusts. This is particularly true when each spouse has property or inheritance that they would like to keep separate for certain reasons.
For example, perhaps a newly married spouse has inherited their parents’ home and the couple would like to live there, but the new spouse wants to make sure the family home stays in their own family and passes only to their own children at their death.
In addition to a prenuptial agreement, keeping the house in a separate trust would allow this spouse to specify exactly how that home should be used and passed on when they die. Using a joint trust to achieve the same result requires much more careful drafting and introduces a much greater potential for confusion and mistakes in administering the trust after the death of the spouse who owns the house.
Reasons to Choose a Joint Trust Over a Separate Trusts in a Separate Property State
Joint trusts are consistent with clients’ view of marital assets
Many spouses see a joint trust as more consistent with their views of marital property. Instead of treating each asset as “his” or “hers,” all assets are viewed as “ours” by virtue of their inclusion in a single joint trust. This allows clients to avoid the sometimes-contentious process of deciding how marital assets should be divided to fund separate trusts.
Joint trusts involve the creation of only one trust instrument, which may save attorneys’ fees
Clients often view joint trusts as a cheaper alternative to a two-trust estate plan. Whether this will be true depends on the estate planning attorney’s fee structure. Drafting a joint trust can—in some circumstances—be a more time-intensive undertaking than drafting two separate trusts, and many attorneys charge accordingly. Regardless of whether the attorney actually charges less for a joint trust, many clients believe that the fees should be less because the attorney is only preparing one document instead of two.
Ease of administration during lifetime
If both spouses are bringing relatively the same amount of assets into the marriage and don’t have significant issues with creditors to worry about, a joint revocable living trust would be the easiest solution during their lifetimes. Creating a joint trust may save time and costs to set up and fund as they are typically more straightforward than setting up separate trusts. You may also save extra steps when it’s tax time each year by not having to have an individual tax return for your spouse’s trust and yours.
Reasons to Choose a Separate Trust Over a Joint Trusts in a Separate Property State
In separate-property states, separate trusts will often be the better choice for married couples with a sweetheart estate plan (at the death of the first spouse, all is left to the surviving spouse, then to the children at the death of the surviving spouse). The benefits of enhanced asset protection, ease of administration, and greater flexibility usually outweigh the psychological benefit of a joint trust.
Enhanced asset protection
As a general rule, assets held in a revocable trust are subject to creditor claims of the trust maker(s). Although this is true for both separate trusts and joint trusts, joint trusts have a disadvantage in that they keep all assets in the same trust. If a creditor obtains a judgment over either spouse, all assets in the joint trust are at risk for attachment by the creditor.
With separate trusts, each spouse’s assets are segregated into a trust for that spouse. If only one spouse becomes subject to a judgment, only the assets held by that spouse are at risk. The assets of the innocent spouse—which are held in a separate trust—are generally out of reach of the creditors of the spouse being sued. This means that separate trusts provide greater asset protection benefits over joint trusts in situations where only one spouse is liable to a creditor.
In addition to asset protection during the grantor’s life, assets in a separate trust are even more protected after the grantor of the separate trust dies. At that time, the trust becomes irrevocable, making it even more difficult for other beneficiaries or the surviving spouse’s creditors to reach the property held in the now-irrevocable trust.
Asset protection may be of special interest to doctors and other professionals at high risk of being sued for professional malpractice, who may benefit from the added asset protection afforded by separate trusts.
Ease of administration at death
One of the main problems with joint trusts is the inability to trace assets after one spouse’s death. As assets in a joint trust are bought and sold over time, it can become difficult to identify which assets are treated as belonging to which spouse. In community-property states, it can also become difficult to determine which assets are joint or community property and which are separate property.
This process frequently requires careful valuation of the property in the trust as well as executing new deeds for real property, retitling stock certificates, or establishing separate investment accounts to hold the deceased spouse’s separate property.
Tracing is especially difficult when joint trusts divide into separate trusts after the first spouse’s death. This requires the surviving spouse to itemize and value the assets that belong in each component after the first spouse’s death. Experience has shown that many surviving spouses simply do not go through this process, resulting in a commingling of assets that is impossible to unwind later.
Tracing can be important for both tax and non-tax purposes. For tax purposes, it is important to understand which assets are treated as belonging to the deceased spouse. This can have implications for both basis step-up and federal estate tax purposes. Similarly, if the spouses have different planning objectives, a commingling of assets or failure to separate the estate into separate trusts at death can alter the client’s non-tax estate plan.
Many of these issues can be avoided with separate trusts. With separate trusts, each spouse is treated as the owner of the assets titled in that spouse’s trust. Any changes in value or sales or purchases of assets are clearly delineated, regardless of whether they occur before or after the spouse’s death. This makes it much easier to identify the original ownership of the assets and the tax consequences that occur both before and after each spouse’s death. Trust administration after the death of the first spouse can be very simple and straightforward. The only tasks may be notifying the financial institutions of the grantor’s death and providing them with the trust’s new tax identification number in order to properly report tax issues going forward.
Flexibility and protection after death
Many joint trusts become irrevocable upon the death of the first spouse. Many clients are concerned that the spouse could remarry or favor one child over another. The purpose of irrevocability is to provide the first spouse with assurance that his or her estate planning objectives are ultimately achieved.
This assurance comes at the cost of lack of flexibility. If there are changes in the law, finances, or family dynamics after the first spouse’s death, joint trusts that have become irrevocable do not allow the surviving spouse to adjust the estate plan to accommodate these changes. Separate trusts, on the other hand, preserve the ability of the surviving spouse to alter, amend, or revoke the assets held in the surviving spouse’s trust.
At the death of a spouse, separate trusts are generally set up to allow the trust assets to be used as needed to support the surviving spouse under the “HEMS” standard (Health, Education, Maintenance and Support), but do not allow the surviving spouse to withdraw trust assets beyond the HEMS standard or redirect the assets of the trust. However, the surviving spouse still has full control over the assets in their own separate trust.
By comparison, a joint trust may be set up in one of three ways:
- After the death of one spouse, the surviving spouse has complete control over the trust assets, and may amend or revoke the trust at any time; OR
- After the death of one spouse, the surviving spouse has limited control over the trust assets, including the separate assets of the surviving spouse within the trust, with no ability to amend or revoke the trust (in other words, the surviving spouse cannot access any of the trust assets other than for their needs); OR
- If a Joint Pour-Over Trust is used, then after the death of one spouse, the separate assets of the trust and one-half the joint or community assets are poured into separate Revocable Living Trusts which were previously drafted for each spouse. This plan requires the drafting of three trusts, but allows the ease of use of a joint trust while both spouses are alive but the control of assets after death that separate trusts allow.
If separate trusts are used, rather than a joint trust, it is possible protect the deceased spouse’s trust assets from being redirected to a new spouse or new children should the surviving spouse remarry, and thus prevents the surviving spouse from disrupting the deceased spouse’s estate plan with regard to the deceased spouse’s assets, without limiting the surviving spouse’s control over their own separate assets in their own trust.
Remarriage and Blended Family Benefits
Couples who have been married before or who have children from another relationship may also benefit from using separate trusts. This is particularly true when each spouse has property or inheritance that they would like to keep separate for certain reasons.
For example, perhaps a newly married spouse has inherited their parents’ home and the couple would like to live there, but the new spouse wants to make sure the family home stays in their own family and passes only to their own children at their death.
In addition to a prenuptial agreement, keeping the house in a separate trust would allow this spouse to specify exactly how that home should be used and passed on when they die. Using a joint trust to achieve the same result requires much more careful drafting and introduces a much greater potential for confusion and mistakes in administering the trust after the death of the spouse who owns the house.
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