Everything You Ever Needed to Know About Wills & Trusts But Were Afraid to Ask
Wills & Trusts
People who enter a marriage or remarriage with significant assets often know they need legal planning. However, deciding whether they need a will, a trust, a marital agreement, or all three can feel confusing. Although these documents may address some of the same property, they serve different purposes. A will or trust explains how you want your property managed and distributed. In contrast, a marital agreement defines the rights each spouse has—or agrees not to claim—in the other spouse’s property. Therefore, one document does not necessarily replace another. For many couples, the strongest estate plan coordinates these documents so they work together instead of creating conflicting instructions. In this post, we discuss wills & trusts.
What Wills and Trusts Accomplish
A will identifies who should receive your property after your death. It can also name an executor to administer your estate and nominate guardians for minor children. However, assets controlled by a will generally pass through probate, the court-supervised process used to settle an estate.
A revocable living trust can provide additional control. For example, a trust may explain:
- Who should manage trust property if you become incapacitated.
- Who should receive assets after your death.
- When beneficiaries should receive their inheritance.
- How property should be managed for children or other beneficiaries.
- Who should serve as successor trustee.
When properly created and funded, a trust may also allow trust-owned assets to pass outside probate.
For couples who accumulated most of their property together, share the same beneficiaries, and want their assets to pass to children of the marriage, wills and trusts may accomplish most of their planning goals. Nevertheless, more complicated circumstances may require a marital agreement as well.
Why a Will or Trust May Not Be Enough
A will or trust does not operate independently from state law. Even when an estate plan contains clear instructions, state law may give a surviving spouse certain rights in the deceased spouse’s property.
These protections developed to prevent one spouse from being left with nothing. For example, one spouse may spend decades raising children and managing the household while the other spouse earns income and owns most of the family property. Without legal protection, the property-owning spouse could potentially leave everything to someone else.
As a result, many states allow a surviving spouse to claim a portion of the deceased spouse’s estate, even when the will or trust provides otherwise. The terminology, amount, and property included in the calculation vary by state. However, the underlying principle remains similar: Marriage may create property rights that a will or trust alone cannot always remove.
When Spousal Rights Conflict With an Estate Plan
Although spousal protections can prevent unfair disinheritance, they may also interfere with a carefully planned legacy.
Consider someone who enters a later-in-life marriage with a home, retirement savings, and a long-standing plan to leave substantial property to children from a previous relationship. The new spouse has assets of their own, and both parties verbally agree to keep their estates separate.
The property owner then signs a will or trust leaving the separate property to the children. However, after the property owner dies, the surviving spouse may still have the legal right to claim part of the estate.
A verbal agreement may not be enough to waive those rights. Consequently, the surviving spouse’s claim could reduce the inheritance intended for the children.
Similar conflicts may arise when someone wants to preserve a family business, protect inherited property, or leave a significant gift to a charity. In these situations, a marital agreement may provide the legal framework needed to support the estate plan.
How a Marital Agreement Fills the Gap
A marital agreement is a contract between two people who plan to marry or who are already married. A prenuptial agreement is signed before marriage, while a postnuptial agreement is signed afterward.
Rather than directing every asset’s final distribution, a marital agreement defines each spouse’s property rights during the marriage and in the event of divorce or death.
A carefully prepared agreement may address:
- The assets and debts each spouse brings into the marriage.
- Which property will remain separate.
- How property acquired during the marriage will be owned.
- Whether income or appreciation from separate property will remain separate.
- What each spouse may receive after divorce or death.
- Whether either spouse waives certain inheritance rights.
- How the agreement will coordinate with each spouse’s will or trust.
For example, spouses entering a second marriage may each want their separate property to pass to their own children. Through a marital agreement, both spouses may waive certain claims against the other’s separate estate. Their wills and trusts can then provide the specific distribution instructions.
Why Someone Might Waive Spousal Rights
Waiving rights in a spouse’s estate may sound unusual. However, many couples make reciprocal waivers because they want to protect children, businesses, inheritances, or other existing commitments.
One spouse may own a family company intended for children who already work in the business. Meanwhile, the other spouse may own rental property intended for their own children. By clearly identifying those assets as separate, the couple can reduce future uncertainty and conflict.
A marital agreement may also help protect:
- Children from a prior relationship.
- Inherited homes or investments.
- Business and professional interests.
- Long-standing charitable commitments.
- Each spouse from certain separate debts.
- A spouse who leaves the workforce or contributes to the marriage in other ways.
Rather than demonstrating a lack of trust, the agreement can encourage transparency. Each person can understand the other’s finances, responsibilities, and estate planning goals before problems arise.
Can a Marital Agreement Be Changed?
A marital agreement does not necessarily prevent spouses from providing for each other later. For instance, one spouse may waive an automatic legal claim while still receiving a voluntary gift through a will or trust.
The agreement defines what a spouse has the right to demand. The estate plan explains what the property owner chooses to provide.
Additionally, spouses may revise an agreement when circumstances change, provided both parties agree and follow the legal requirements for an enforceable modification. Because enforceability may depend on disclosure, timing, voluntariness, legal representation, and state law, couples should not rely on informal promises or generic online forms.
When to Consider a Marital Agreement
Not every couple needs a prenuptial or postnuptial agreement. However, one may deserve consideration when:
- You are marrying or remarrying with substantial assets.
- You or your spouse have children from a prior relationship.
- You own a business, professional practice, or valuable real estate.
- You expect to receive a significant inheritance.
- You want property to pass to someone other than your spouse.
- You want to keep certain finances or debts separate.
- Your estate plan includes significant charitable gifts.
- You want to prevent spousal rights from disrupting your estate plan.
Addressing these issues before marriage—or before a conflict develops—can protect both spouses and make future estate administration easier for their families.
Coordinating Your Legal Documents
Wills, trusts, and marital agreements are not competing documents. Instead, each handles a different part of a comprehensive plan.
A will or trust explains what you want to happen to your property. A marital agreement defines the legal framework that may allow those wishes to be honored.
However, the documents must remain consistent. Problems can arise when an old will conflicts with a newer marital agreement or when beneficiary designations do not reflect the couple’s current intentions. Therefore, couples should review their wills, trusts, marital agreements, property titles, retirement accounts, and insurance policies together.
About Skvarna Law Firm in Glendora and Upland, California
Skvarna Law Firm operates from Glendora and Upland, California and serves clients throughout San Bernardino County, Los Angeles County, Orange County, and Riverside County, including Upland, Ontario, Rancho Cucamonga, Fontana, Colton, Rialto, Chino, Chino Hills, Glendora, Claremont, Pomona, La Verne, Montclair, San Dimas, Azusa, Covina, West Covina, Diamond Bar, Walnut, La Puente, Corona, Norco, and Mira Loma. We focus on estate planning, trusts, wills, probate, and elder law, helping clients protect their assets and provide for their families with confidence. Visit SkvarnaLaw.com to learn more.
