You’re married and you’ve made the smart decision to draft a Trust for you and your family, but do you and your spouse create one joint Trust or instead each draft your own separate Trusts? There’s no one-size-fits-all answer to that question as it is dependent on your particular situation. There are several factors in Missouri that weigh into such a decision:
- Do you each have the same beneficiaries?
While many spouses have the same beneficiaries and agree on how their assets should be distributed after their passing, sometimes that’s not the case. If one spouse has children from a previous marriage, if there is a Prenuptial Agreement involved, a family business, premarital property, or one spouse just wants their assets to be distributed to different people than the other spouse, two separate Trusts may be the best and most secure way to accomplish this and ensure that each your beneficiaries are provided for. If you draft a joint Trust, the surviving spouse has the ability to change the beneficiaries after the first spouse passes, but beneficiaries on an individual Trust cannot be changed after death.
- Does one of you have children from a previous relationship?
If one of you has children from a previous relationship and you want to guarantee that those children inherit a percentage of your assets, an individual Trust may be the best way to do so. As discussed in the previous paragraph, if you have a joint Trust and you die first, the surviving spouse can change the beneficiaries and eliminate any gift to those children. Beneficiaries on an individual Trust cannot be changed after death.
- Are most of your assets titled jointly or separately?
If most or all of your assets are jointly titled, a joint Trust may be a smooth transition for you. On the other hand, if you and your spouse keep your assets separate (e.g., separate bank accounts, investments, etc.), you may want to draft separate Trusts to continue to protect those assets.
- How important to you is the ease of funding and administration of your Trust?
A joint Trust may be easier to administer during your joint lifetimes as you and your spouse handle it just like you would a joint account. All of your assets are rolled into one joint Trust and either of you can sign checks and make decisions on your accounts. Separate Trusts are a bit more cumbersome as you would each have accounts titled in your own Trust that the other would not have access to. Often, with separate Trusts, current joint accounts have to be split up and retitled 50% into each spouse’s separate Trust.
- Do you want to give your spouse the ability to amend the trust and possibly change beneficiaries after you die?
With a Joint Trust, in most circumstances, the surviving spouse can amend the Trust and change beneficiaries after the first spouse dies. With an individual Trust, your spouse cannot change the Trust after your death. Each of these scenarios may be positive or negative depending on your particular situation.
- Is protection from creditors important to you?
There are situations where Joint or Individual Trusts may both be advantageous in protecting assets from creditors. If you hold property jointly (e.g., in a joint Trust), that asset is given special protection, and it cannot be seized by a creditor who has a judgment against only one of the spouses. But, if the spouse who has the judgment against him or her is the surviving spouse, all of those assets may be subject to seizure at that time. If you create a separate Trust, during your life, those Trust assets are viewed as still being owned by you and can be seized by any creditors who obtain a judgment against you, but cannot be seized by creditors of your spouse (that protection can be made to continue even after your passing.)
- Do you have a prenuptial agreement or premarital property that you’d like to protect in the event of a divorce?
Separate Trusts may keep that property separated in the event of a divorce. Otherwise, if you create a joint Trust and retitle your separate premarital property into that joint Trust, there is an argument to be made by the other spouse in a divorce that such separate property was converted into marital property and is now equally owned by both spouses and subject to division.
- Attorney Fees.
This should not be the overriding factor in your decision, but please be aware that drafting two separate Trusts will be a bit more expensive than drafting a single Joint Trust.
- Status of relationship/volatility of your marriage/protection of your assets.
Separate Trusts may protect your assets if your marriage is somewhat rocky, questionable, or in doubt, since the other spouse cannot access or change your Trust or the assets owned by the Trust.
All things being equal, and if there are no overwhelming circumstances that negate using a joint Trust, our office tends to steer clients toward a joint Trust as they are generally less cumbersome and easier to maintain than separate Trusts. On the other hand, if some of the above factors point toward separate individual Trusts being of benefit, our office will discuss your circumstances and explain the pros and cons of each so that you can make the best choice for you and your family.