In the final post of our series on estate planning for marriage, we consider general estate planning issues that can accompany divorce or death, and a few asset protection strategies.

If a married couple has not established pre or post-nuptial agreements, certain statutory spousal rights exist. In Tennessee, if a spouse dies, absent a pre or post-nuptial agreement, the surviving spouse may claim an “Elective Share” regardless of the terms of the decedent’s will.

Tennessee’s Elective Share statute often allows a surviving spouse to thwart the estate plan of their deceased spouse. Implementing an estate plan that properly allocates and distributes significant holdings in such a way that bypasses Tennessee’s Elective Share statute can minimize this risk.

It is important to review and, if necessary, update the titling of assets. In Re Estate of Calvert Hugh Fletcher, a case we recently discussed involving litigation over the ownership of a married couple’s joint bank account, emphasizes the importance of being intentional in how you title assets. As part of the estate planning process, much consideration to asset titling should be given to ensure your holdings are protected during your lifetime and ultimately distributed in accordance with your desires upon your death.

Careful attention should also be paid to beneficiary designations named on life insurance contracts, retirement accounts and all other payable-on-death or transfer-on-death assets (“POD” assets”). In Tennessee, beneficiary designations, if made properly on POD assets, can cause POD assets to avoid passing through the probate process and being subject to the Elective Share. There are, however, important tax and non-tax considerations to weigh when determining appropriate beneficiary designations.

It is also important for married couples to designate who will have responsibility for managing their financial and health care affairs if they become unable to do so. For some individuals, their spouse is not the best person suited to take over these responsibilities should the need arise. For people in this situation, it is important that they seek professional advice to ensure the right people will be granted decision-making authority should the need arise.

Finally, simply doing nothing can have severe consequences for everyone involved and lead to a heated dispute amongst family members when trying to determine who will care for a spouse or parent should the need arise and also how assets will be allocated and distributed upon a spouse or parent’s death. Establishing a well-thought out plan will help protect you and your loved ones and ensure your desires and goals are achieved.

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