The short answer is yes. Estate state planning between a married couple seems like it may not be needed because of the way that married couples generally own things and because wealth transfer between married couples is usually pretty easy.
Estate planning is essentially plugging the gaps that are not otherwise taken care of through marital ownership. A Last Will and Testament would still likely name a surviving spouse for property distribution, but estate planning also takes care of what happens if both spouses pass away together, as opposed to only one and there being a survivor.
Estate planning comes to fruition from a wealth distribution perspective after both spouses pass away. Additionally, from a legal authority perspective, even married couples don’t have the right to conduct the other’s financial affairs if one spouse becomes incapacitated. So if it’s a husband and wife couple, if the husband becomes incapacitated, the wife doesn’t just through marriage have the right to sign the husband’s name or sign instead of the husband for things like property transfers, contracts, moving or opening accounts, or additional legal planning.
A couple with minor children, or adult children for that matter, would benefit from a complete wealth transfer strategy, setting out how their children would receive wealth after both spouses have passed away. Additionally, for minor children, a Last Will and Testament allows the parents to name a legal guardian, with named alternates, to care for the child(ren) if they are still minors after both parents have passed.
Estate planning is not just about making things easier for a surviving spouse? It also controls how we protect each spouse during their respective incapacity, and what happens after both spouses have passed. So there’s a lot that is still left uncovered just through marriage alone, that estate planning is really meant to plug the gaps.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.