Tag: spouse

Is It a Good Idea to Sign a Joint Will with Your Spouse?

Posted May 23, 2022 by Law Office of Andrew Szocka

When planning your estate, you may wonder if it is a good idea to sign a joint will with your spouse. You love your spouse and want to share everything with him or her – why not make your wills together? Though joint wills once were widely used and popular, the major problems they create should deter you from making one.

What Is a Joint Will?

A joint will is a creature of convenience that many people used before modern technology became available. It saved a lot of time (and handwriting or typewriting) to list a married couple’s wishes in one document instead of two. Both of the spouses would sign the will, and it would dispose of all their property.

What Are the Disadvantages of a Joint Will?

Joint wills have many disadvantages, including:

  • Both spouses must agree to any changes to the will;
  • Both spouses must execute the will if it they modify it; and
  • If the will is worded improperly, the surviving spouse may not benefit from the other spouse’s property.

Importantly, the surviving spouse cannot change the will after the other spouse dies. Once one spouse dies, both spouses are not able to agree to any modifications. This could seriously hinder the surviving spouse from carrying out his or her wishes. For example, the surviving spouse may remarry and want to leave money to his or her new spouse or stepchildren. This would be impossible with a joint will. So would disinheriting someone listed in the joint will.

Alternatives to a Joint Will

Couples today often have separate property. Many people have children from a previous relationship. Others have individual ties to charities or organizations not shared with their spouse. All this means that spouses often have different wishes incompatible with a joint will.

One option instead of a joint will is each spouse forming a trust that benefits the other spouse. You also might consider beneficiary designations on life insurance or retirement accounts leaving the payouts to each other. Of course, each spouse should make a separate will too.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

How Can Estate Plans Help Same-Sex Couples?

Posted May 21, 2022 by Law Office of Andrew Szocka

Estate plans can greatly help same-sex couples manage their financial and medical affairs, as well as protect each other even after death. While same-sex married couples have many of the same estate planning advantages as opposite-sex married couples, people who are unmarried should take special care to plan ahead.

Managing Financial and Medical Affairs with an Estate Plan

An unmarried person may have trouble handling his or her partner’s affairs if the partner becomes very ill or mentally incapacitated. The same is true for married couples who do not share the same last name. Medical and financial institutions are more likely to ask for proof of marriage or simply block you from making decisions on your partner’s behalf. As a result, you might be kept out of the hospital room at a key time or be unable to pay the bills.

Estate planning can help with these problems. Both unmarried and married couples may sign powers of attorney in each other’s favor that have been prepared by an estate planning lawyer. A power of attorney gives a chosen person authority to make decisions for the creator. It can go into effect when the creator becomes incapacitated from making decisions or at any other time. Powers of attorney may be medical or financial, and many people choose to sign special advance directives that address a variety of medical and end-of-life questions.

Protecting Each Other During Life and After Death with an Estate Plan

Another significant concern for same-sex couples is protecting each other financially in the event of life changes or even the death of one partner. Without an estate plan in place, a married spouse will most likely inherit part of the estate from the other spouse. But unmarried partners who have not made wills have no entitlement to part of each other’s estates. Instead, the money or property would be divided up among close family members such as children and parents.

To gain more peace of mind that your wishes for your partner or spouse will be carried out, you need to make a will. This legal document explains how and to whom an executor should distribute your money and property after you have passed away. You can consult an estate planning lawyer to help you prepare your will and get it properly executed.

In addition, you can protect your partner or spouse through other estate planning structures. You might consider leaving resources to them through a trust, life insurance, retirement accounts, or lifetime gifts. To put these structures in place, you need to take a few steps such as filling out beneficiary designations and checking on tax consequences. Speak to an estate planning lawyer to learn more.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Updating Your Estate Plan After Marriage

Posted May 20, 2022 by Law Office of Andrew Szocka

After you get married, you may need to make substantial updates to your estate plan. Marriage changes many parts of people’s lives, including their need to plan for the future in different ways.

How Could Marriage Change Your Estate Plan?

As you celebrate the beginning of a new marriage, you also might think about protecting your spouse in case anything happens to you. If you plan to have children or have new stepchildren due to the marriage, you probably want to protect them too.

Estate plans made before marriage most likely do not include future spouses or children. As a result, your new husband, wife, or partner might not inherit anything from your estate if you passed away unexpectedly. While spouses and children omitted from a will may inherit part of an estate in some cases, there are no guarantees. It provides more peace of mind to revise your will and other estate planning structures.

Will Your New Spouse Inherit Even If You Don’t Change Your Estate Plan?

In Illinois, an “omitted” spouse who married a deceased person after his or her will was signed and who is not included in the will might still inherit. The law may allow the spouse to make a claim against the estate, requiring the estate executor to distribute part of the assets to the spouse and reducing the amount that other heirs will receive. However, if the will explicitly omits the spouse, then the omitted spouse law may not apply. If any language in the will says that a spouse will not receive anything, then the probate court could decide that the deceased person disinherited the spouse on purpose.

Which Parts of Your Estate Plan Do You Need to Update?

You should review your entire estate plan shortly after marriage to see if you need to make any changes. This includes your will, powers of attorney, medical directives, trusts, retirement accounts, life insurance policies, business succession plans, guardianship designations, and any other documents relating to the future. You and your spouse may want to visit an estate planning attorney (either the one who made your original estate plan or someone new). The attorney can advise you on any new legal issues that arise with your marriage, such as potential estate taxes or need for different language in the legal documents.

Want to update your estate plan? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

How Does the Marital Deduction Affect Couples’ Estate Planning?

Posted May 19, 2022 by Law Office of Andrew Szocka

When married couples start estate planning, they may not realize the advantages of the marital deduction. This special tax deduction available only to married couples can help save money on taxes, but some additional estate planning might be necessary.

What Is the Marital Deduction?

The marital deduction is a tax deduction permitted by the IRS that allows spouses to make unlimited tax-free transfers to each other during their lifetimes or upon the death of one spouse. In other words, one member of a married couple will not have to pay gift taxes at the time if he or she transfers property or money to a spouse. Further, a surviving spouse can receive an inheritance from a deceased spouse without losing a chunk of the money to estate taxes.

The deduction only forestalls taxes until the death of the surviving spouse. At that point, the surviving spouse’s estate may owe estate taxes if the value of all the spouse’s assets exceeds a certain amount (currently in the tens of millions of dollars). Also, if the surviving spouse remarries at some point, then the surviving spouse may be able to give the property or money received from the deceased spouse to the new spouse.

Estate Planning to Take Advantage of the Marital Deduction

To make the most of the marital deduction, couples can do some estate planning that minimizes the surviving spouse’s exposure to estate tax liability. Which estate structures to put in place depends on the couple’s amount of assets. For example, you might need to move assets into a trust so that the surviving spouse’s estate can take advantage of the estate tax exemption (the maximum amount in the estate before owing taxes). Different kinds of trusts can provide support for the surviving spouse while removing assets from his or her taxable estate.

Keep in mind that non-citizen spouses are not eligible for the marital deduction. In fact, non-citizens often only receive lower estate tax exemptions too, so potential tax liability is huge. Fortunately, some careful estate planning can help, such as setting up a qualified domestic trust (QDOT). If you have questions about the marital deduction or the taxes that may apply to you, talk to a local estate planning lawyer.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Illinois Marital Property Laws: The Basics

Posted February 25, 2022 by Law Office of Andrew Szocka

If you have ever been divorced or considered divorce in Illinois, you may have heard of the term marital property. The Illinois marital property laws dictate how assets are divided up in a divorce, independent of how they would be divided upon death of one of the spouses. Spouses can alter division and distribution of assets through a prenuptial or postnuptial agreement or in their wills.

What Is Marital Property?

In Illinois, any property that is acquired before the marriage, by gift, or by inheritance is non-marital property. 750 ILCS 5/503(a). In addition, any income received from non-marital property or increase in value on the property is considered non-marital property. The non-marital property belongs to the spouse who originally acquired it.

Any other property not listed above – usually property acquired during the marriage by one or both spouses – is marital property under the law. During a divorce, all marital property will be distributed equitably between the two spouses. But non-marital property cannot be divided by the court or assigned to the other spouse. 750 ILCS 5/503(d).

What Happens to Marital Property When One Spouse Dies?

Illinois is not a community property state, so the marital property laws do not apply when a spouse dies (only for divorce). Each spouse is considered to own the assets that are titled in his or her name. In other words, if only one spouse’s name is on a car title, then the car is part of only that spouse’s assets and will be distributed as part of his or her estate after death. When the spouses jointly own property, the surviving spouse may automatically receive full ownership of the property outside of the probate process.

Each spouse can make a will that leaves a portion of his or her assets to a spouse, but also he or she could disinherit the spouse altogether. If there is no will, the surviving spouse will receive a share of the deceased spouse’s assets by law.

In addition, spouses can sign a prenuptial or postnuptial agreement that affects distribution of assets – both upon divorce and upon death of one spouse. See 750 ILCS 5/503. For example, such an agreement might waive marital property rights, preventing distribution of property acquired during marriage between the spouses. The agreement also might waive the spouses’ statutory shares of the estates if either dies without a will. Spouses interested in signing this kind of agreement should be sure to integrate it with their existing estate plans or incorporate it into a new estate plan upon marriage.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.