Revocable or living trusts play an important role in many estate plans. Married couples utilizing trusts in their estate plan will need to consider whether it's best to set up joint or separate living trusts. There are different tradeoffs involved which may make either a joint or separate trust advantageous. Since state-specific laws play such a big role in this decision as well as your financial situation and goals, it may be best for you and your attorney to start there before deciding on a trust vehicle.
Important disclosure: The material in this article is intended to provide generalized information only as to some of the financial planning considerations of joint or separate trusts and should not be misconstrued as the rendering of personalized legal or tax advice. We strongly recommend you consult an estate planning attorney in your state to discuss your personal situation and estate planning needs. Darrow Wealth Management offers Private Wealth and Asset Management to individuals and families; we do not provide legal or tax advice.
What is a revocable living trust?
A revocable trust (also called a living trust) is "funded" during your lifetime and becomes irrevocable at your death. Funding a trust means retitling assets in the name of your trust. Unless you fund the trust, it doesn't really serve a purpose. During your life, you can add, use, or remove assets in the trust as you would normally and there are no changes to the tax treatment of these assets.
Joint vs. Separate Revocable Living Trusts for Married Couples
For some families, choosing a joint or individual living trust will just be a matter of preference or convenience. In other situations, one route could offer significant benefits over the other. It's important to discuss the pros and cons with a trusts and estates attorney in your state to understand the benefits and drawbacks. While not an exhaustive comparison, these are several considerations when choosing between joint or separate revocable living trusts. Click to jump to comparison graphic.
In some cases, and depending on state law, separate trusts may offer better protection from creditors than a joint revocable trust. The type of asset also plays a role in the level of asset protection. Recall that revocable trusts can be accessed at any time, so it isn't a tool for those with a primary focus on protection from legal claims.
Ease of administration
For many couples, a joint living trust is easier to fund and maintain during their life. They don't need to think about equalizing the value of their respective trusts as everything goes into the 'same pot.' Both spouses are typically co-trustees of the trust. A joint trust also alleviates the concern that an asset (typically a home) is only owned by the trust of one spouse. If both spouses want the surviving spouse to have full control over the assets in the trust and they both have the same ultimate beneficiaries of the residual estate, a joint trust may be the most straightforward to accomplish those goals.
For couples with equal incomes and assets, mostly separate finances, prenuptial agreement or second marriage, it may be more straightforward to maintain different trusts. Separate trusts can be set up so both spouses are co-trustees on each trust, or just one. If one spouse has kids from a previous marriage and would like to leave them an inheritance either at their death or the death of their surviving spouse, different revocable trusts keeps the distribution of your assets transparent and controllable.
Estate tax benefits
At the state level
In states with an estate tax not tethered to federal law, using either a joint or separate trust can be advantageous depending on the situation.
Here's a simplified example of how separate trusts can help preserve estate tax benefits:
Pramilla and Andy are a married couple in Massachusetts. It's 2019 and the estate tax exemption is $1M. The couple has $2M in assets, $1.5M of which are owned by Pramilla's living trust, with Andy's trust owning the rest. If Pramilla died in 2019, her marital trust would be funded first (also called bypass or credit shelter trust) up to the $1M limit with the remaining $500,000 flowing to a family trust. Andy could have access (to some degree) to both trusts for his life. If Andy died later in 2019, the marital trust could pass to their children outside of Andy's estate. Assuming no change in valuation, Andy's gross estate would be worth $1M at his death, equal to the $1M exemption, so no estate tax would be due.
But what if Andy died first? His marital trust would only equal half of the exemption amount. If Pramilla died later in the year, her gross estate would be worth $1.5M, the entire amount now subject to tax. Had the couple equalized their estates, they wouldn't have lost $500,000 of Andy's exemption amount.
Now consider the same facts as above, except the couple owns a home worth $1.5M. Since a home cannot be divided into two trusts, it may make sense for the couple to consider a joint living trust instead. Depending on how the estate plan is drafted, it may still be possible to utilize a marital trust for a portion of the assets after the first spouse dies.
At the federal level
Federal estate tax legislation now allows the portability of the combined $23.16M estate tax exemption (in 2020) between spouses. Before, credit shelter trusts were commonly used (such as in the example above) to ensure married couples could utilize the full credit. Thanks to portability, this strategy is no longer needed for many citizens. To elect portability, families of the decedent need to file a federal estate tax return within 9 months of their death, or request an extension.
The change in legislation is a perfect example of why it's so important to keep your estate plan current. If someone dies with an estate plan that was drafted under outdated laws, they'll likely wind up paying a lot more in attorney fees and administration costs and the result may end up looking a lot different than the original intention.
Couples with different beneficiaries
As is particularly common for second marriages, not all couples share the same legacy goals. In instances where spouses have differing opinions as to who should receive what, separate trusts can help ensure each person's assets pass according to their wishes. It also simplifies the asset distribution process after death, meaning beneficiaries could receive their share faster. Since quicker often means less expensive as far as estate administration goes, this could also mean there's more left for your heirs.
Important notes and final thoughts
Estate planning is a complex field that requires highly personalized planning. Laws change periodically and with so many different caveats and circumstances that could occur, the support of a qualified estate planning attorney who practices in your state is essential.
Other complexities to consider:
- Retirement assets: retirement assets cannot be titled in the name of a trust and will can pass directly to heirs though beneficiary designations. Though it's often possible to name a trust as a beneficiary, it's not commonly the best option due to required minimum distribution (RMD) rules. Regardless, retirement assets are part of your gross estate. Note: starting in 2020, under the Secure Act, beneficiaries who inherit a retirement account from a non-spouse (e.g. parent or relative) must take the funds in 10 years.
- Life insurance: similar to retirement assets, life insurance also passes by beneficiary designation and will be included in your gross estate unless without an Irrevocable Life Insurance Trust (which is a whole other topic in itself!). There are various pros and cons of naming a revocable trust as the beneficiary.
- Step up in basis: when someone dies, certain assets like a taxable brokerage account or a home can be eligible for a step-up in basis to the fair market value as of the date of death. Depending on how your estate plan is structured, it's possible to get a step-up at the death of the first spouse, and then another when the surviving spouse dies. However, that can also mean owing estate tax on the assets eligible for the second step-up. A credit shelter trust only receives the first step up, but bypasses estate taxation. Therefore, it isn't just about considering assets at their current value, but also being thoughtful about which assets are likely to appreciate and the most appropriate vehicle to achieve your legacy goals though the estate planning process.
At Darrow Wealth Management, we work with families and often act as the coordinator with their legal and tax team to help ensure their wealth is managed at the highest level - even through generations. As an independent registered investment advisor, fiduciary, and second generation family business, we take the time to really get to know our clients and their loved ones to help provide continuity and support of their financial life as it evolves over time.
The material in this article is intended to provide generalized information only as to some of the financial planning considerations of joint or separate trusts and should not be misconstrued as the rendering of personalized legal or tax advice. We strongly recommend you consult an estate planning attorney in your state to discuss your personal situation and estate planning needs.