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Postmarital Planning

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    Whether you just tied the knot or just celebrated your Golden Anniversary, it is never too soon (nor, perhaps, too late) to get your legal house in order as a couple. In this article we review some fundamental legal tools and techniques that are must-haves for every married couple.

Durable Powers of Attorney

    Many married couples mistakenly believe that upon exchanging vows they are granted blanket legal authority to carry out their mutual pledges to care for one another in sickness and in health. Unfortunately, the law requires further and more specific written legal authority. For example, if one spouse is legally incapacitated due to an illness or an injury, then this becomes painfully apparent.
    Each individual adult American is responsible for making his or her own personal, health care, and financial decisions. When incapacity strikes, that responsibility does not end. But, under such circumstances, who will make these decisions? Bottom line: It will either be someone appointed by you in advance, or someone appointed for you by a judge in the probate court. Hint: Hiring an attorney to prepare a durable power of attorney to appoint your spouse as your agent is much less expensive than having a judge (plus the two additional attorneys required) eventually appoint your spouse anyway.
    A durable power of attorney may be prepared to cover both financial and health care matters in one document. Alternatively, separate documents may be created with one for financial and the other for health care. While you are at it, remember to prepare a living will or a health care treatment directive to provide proof of your end-of-life treatment wishes.

Wills & Trusts

    Once you have made arrangements to care for each other in the event of incapacity, make arrangements for the smooth transfer of your assets to one another upon death. These transfers may be outright or in trust. Also, do not forget to make arrangements for any eventual inheritance that may be left to your children. Sometimes it is wise to protect an inheritance both from and for your children. Testamentary trusts, whether established under a last will and testament, or under a revocable living trust, can provide considerable inheritance protection for your children from potential divorces, lawsuits or bankruptcies, as well as from squandering.

Estate Tax Challenges

    The current estate tax laws are only “certain” through December 31, 2012. Until then, a married couple can protect a total of $10 million without creating a traditional credit shelter trust as part of their estate plan. This is due to the unprecedented portability provisions that are part of the current estate tax law.
    Given the “uncertainty” of the future of the current estate tax law, staying informed is critical to the success of your overall, long-term estate planning strategy.
    Note: This is not a do-it-yourself project. Retain appropriate legal counsel to review your options, as changes inevitably occur.