Recently the Wall Street Journal published an article titled Estate Planning For Childless Couples, which outlined two important estate planning considerations for couples that do not have children: (1) distribution of the couple’s assets after death; and (2) naming someone other than one’s spouse to make health care and financial decisions if neither spouse is able to make such decisions.
Let’s start with the distribution of the couple’s assets. Last year I wrote about what happens to someone’s property in Illinois if he or she dies without a will. Let’s apply that to a hypothetical husband and wife with no children and no estate plan. If the husband dies first, Illinois law dictates that all of his assets pass to his surviving wife. At the death of the wife (assuming the wife has not remarried and has not had any children), the assets then pass to her siblings and parents. See the issue? In this example, only the wife’s family inherited from the couple due to the order of their deaths. The husband’s family received nothing. Many couples without children will set up an estate plan that allows the surviving spouse to use all of the couple’s assets, but at the death of the surviving spouse the remaining assets are split 50/50 between their families. Or, some prefer that a portion of their assets pass to friends or charity. All of this can be accomplished with proper estate planning.
The second consideration is naming a backup person – called a successor agent – to make health or financial decisions if neither spouse is capable of making such decisions. While one’s spouse is the obvious first choice to make health care and financial decisions, there are times when both spouses are unable to care for each other or even themselves. In this case, having designated ahead of time the person that is in charge of making all decisions greatly decreases the likelihood of a family dispute over who should make such decisions. A backup agent could be a family member or close friend. As the WSJ article notes, if there is not a trusted family member or close friend, then there are care organizations that are willing to serve as an agent. Regardless of who is named as successor agent, it is very important to have this Plan B in place.
Of course, there is always an alternative to setting up an estate plan: spend every penny before one’s death and leave nothing behind. Brilliant plan, so long as one can predict the exact date of his or her death, in which case I would suggest a lucrative career in the fortune telling business.