Does a Married Couple without Children Need a Will?
While estate planning for couples with no children seems like it would be very simple, the opposite is almost always the case, according to this informative article titled “Three keys to estate planning for couples without children” from The News-Enterprise.
If there’s no last will, Louisiana intestate succession laws dictate who will receive property.
A nighmare waiting to happen. Louisiana law provides that if a spouse of a married couple without children dies without a will, the one-half community property share owned by the deceased spouse devolves (is inherited) by the surviving spouse. Keep in mind that most often, the largest portion of property owned by a couple is community property, particularly if a couple has been married many years. This can be a nightmare waiting to happen. In my law practice, I have seen many times cases in which a spouse did not have a will, and all of the property was inherited by the surviving spouse (who died shortly after the first spouse to die), and the surviving spouse’s siblings, nieces and nephews inherited ALL of the property of both spouses. I recently had a just such a case. My client, who had a sister that died, had to be told the very bad news: all of her sister’s wealth, amounting to at least $1.5 million, was going to be inherited by her sister’s in laws (who hated her). Such are the consequences of not planning.
You would think that the news would not be so bad when it comes to separate property owned by a spouse (who is one of a married couple without children). While it is true that separate property owned by a predeceasing spouse is inherited by the predecasing spouse’s family, this can cut the other way. The predeceasing spouse may want to leave his or her assets to the surviving spouse, or at least leave a usufruct to the surviving spouse. This can be very important when the separate property includes a home that the surviving spouse is living in. If separate property is inherited by the predeceasing spouses family, the surviving spouse CAN BE EVICTED by his or her in-laws. Another nightmare scenario.
The important thing to keep in mind is that you should not let the State of Louisiana dictate who gets your property. Have at least a Last Will and Testament for your loved ones.
There should be provisions in the last will, in case of a simultaneous death. This lets the more important provisions focus on the heirs. While property may pass easily outside of probate to the survivor, the same will not be true if property is to pass to heirs.
If at all possible, couples should have the same designated heirs. If the couple intends to leave everything to the surviving spouse, they will need to decide who will receive community property after both have died.
Last wills for each spouse must be created to work together. Designating separate lists of legatees (heirs or beneficiaries) for a married couple without children in each spouse’s last will and testament ultimately results in the marital property being left only to one spouse’s loved ones. The result: the other spouse’s family can end up being disinherited.
One way to address this is to create marital shares of property. Couples generally divide marital property in equal shares, although couples in blended families may choose to use a different fractional share.
For each fractional share, each spouse should write out their own list of legatees (heirs), being sure that the total ends up being 100%.
Another point to be determined: will survivors within the group receive a larger share pro rata, or will children of the deceased heirs receive their shares? This needs to be clarified when the estate plan is created to avoid potential problems for heirs.
Heirs (or legatees) could potentially be changed after the death of the first spouse, so if the couple wants to prevent anyone from being disinherited, they can use a revocable living trust which can become partially or fully irrevocable on the death of the first spouse. This can lock up the deceased spouse’s shares in a manner to allow the property to remain at least partially available for the survivor, but the survivor cannot change the heirs for the deceased spouse’s share.
Estate planning for a married couple without children can have its own pitfalls, so consult with an experienced estate planning attorney, who will know how to protect all members of the family.
Reference: The News-Enterprise (July 27, 2021) “Three keys to estate planning for couples without children”
To learn more about this topic, read my other blog post Do Stepchildren Inherit? and this blog post: Blended Families Create Estate Planning Challenges and No Kids? What Happens to My Estate?