Estate Planning When Your Spouse Isn’t On Board: What to Do

If you are ready to begin estate planning, but are getting resistance from your spouse, you may be wondering if you should go it alone.  Although addressing your combined estate and goals is helpful, you can take control of your estate planning on your own.

Open and Honest Discussion

Spouses often complete their estate planning together.  However, it is not unusual for one spouse to avoid the topic.  Estate planning comes with difficult emotions and important decisions.  It’s not surprising that someone may not want to deal with this head-on. 

Discuss with each other the reason that one is resisting this project.  If the topic is emotionally heavy for your spouse, ask why and what might help to reduce the emotions.  Did your spouse experience the aftermath of a difficult estate administration? Are they worried about not being alive at key moments of their loved ones’ lives? 

Getting to the heart of their reluctance is important information for you to understand if you will be able to convince them to engage in estate planning with you, or if you need to take on this matter for yourself.

Your Individual Estate Plan is a Gift to Your Loved Ones

Estate planning for a couple may include joint decisions on desired bequests to loved ones, guardianship appointments of minor children, tax benefits and combined legacy goals.  If your partner does not want to engage in the process, you can still make many of these key decisions on your own. 

We often work with one partner in a couple, usually a woman, whose partner does not want to engage in estate planning.  We provide you with an outline of what estate planning powers you have alone and how it might be different if your spouse joined in the planning.  You will be aware that you have much ability to direct the disposition of your estate.

Your individual documents will express your wishes to ensure that your loved ones have a seamless plan to administer your estate.  By planning ahead, it will allow your loved ones to focus on your shared memories and not on the complexity of administering an intestate estate.

Intestacy is Your Default Estate Plan Where Distribution is Governed by the Law

Without an estate plan in place, you will be considered intestate at your death.  The result is that the law will govern who receives your estate, who is your estate’s administrator, and who is your children’s guardian. 

In New York, the estate of a person who dies with a spouse and no children passes entirely to the spouse.  If the person dies with a spouse and children, the first $50,000 passes to the spouse, plus 50% of the residuary, with the other 50% to the children.

In New Jersey, the distribution is more nuanced.  As a comparison, if a person dies with children and no spouse, the children receive the entire estate equally.  If a person dies with a spouse and children all born of the marriage, the spouse receives the entire estate.

Intestacy requires additional Court oversight and does not allow for deviation from the law of descent and distribution.  Your estate administrator may have to file a costly bond if there are minor children.  If most of your relatives are estranged, your estate administrator may have to hire a genealogist to identify which of them are automatically entitled to your estate assets. If you have a taxable estate, your heirs will receive a lower bequest because you did not proactively take steps during your lifetime to create lifetime trusts.

By creating an estate plan, you will be able to override most of the default laws and avoid the extra costs and delays in an extended court proceeding.

Moving Forward Confidently on Your Own

The law does not require that spouses engage in estate planning together.  If you have attempted to convince your spouse that estate planning is important to you, and they have not agreed, it may be time to forge ahead on your own. 

The process is empowering as you will have the opportunity to discuss your goals with an attorney, understand the options available to you, and improve the outcome for your loved ones.  You will feel relieved to know that you have taken control over your estate plan and that your legacy goals will be realized.

At Abelaj Law, PC, we are committed to assisting individuals and families with all of their estate planning legal needs so they can feel confident that their final wishes are honored. Contact our experienced legal team today at 212-328-9568 for a free introductory call to learn more.