Estate Planning in Wisconsin for Married Couples With No Children

Estate planning laws in Wisconsin for married couples without children are pretty clear cut. When one spouse passes away and there is no will (called intestate), the whole estate goes to the surviving spouse.

But what if you have assets or property that you would like to leave for someone other than your surviving spouse?  

And what happens to your assets after the surviving spouse passes away? If you pass away first and your spouse does not have a will, the whole estate you shared as a couple will go to your spouse’s family. Your family members would not be considered heirs.

If a married couple without children pass at the same time, such as in an accident, then the estate will be divided between the families of both spouses. The laws of intestacy in Wisconsin dictate that your estate would first go to living parents, then siblings (if parents are deceased), then aunts and uncles (if no living siblings), then nieces and nephews, then cousins.

With no children as heirs, what should your estate plan look like?

Most childless married couples have wishes with regard to beneficiaries of their estate. Therefore, it is important that couples meet with an attorney to discuss estate planning, including:

• Distribution of the couple’s assets in the following scenarios:
  • if one spouse passes first
  • if the other spouse passes first
  • if both spouses pass at the same time
• Postnuptial/Marital agreement to clarify individual ownership of various assets such as a home, vehicles, family business, investment accounts, real estate, and family heirlooms
• Financial Powers of Attorney for each situation
• Healthcare Powers of Attorney for each situation
• Executors (personal representatives) and co-executors in each scenario
• Updating beneficiaries on Payable on Death (P.O.D) accounts such as life insurance, property deeds or various financial accounts
• Setting up a trust or multiple trusts for the different scenarios
• Disability of one or both spouses
• Business succession planning if there is a family business (including buy-sell agreement with other business owners)
• Charitable giving

What kind of property is covered in a will?

It’s important to make a clear list of the property you want distributed through your will. Some items to consider include:

• Investment accounts – such as 401K, IRA, mutual funds, bonds
• Savings/Checking accounts – Joint accounts and individual accounts
• Life insurance policies, which are typically not a part of probate property
• Real estate such as a home, land, vacation property (taking note of any titles or deeds)
• Vehicles such as cars, boats and other motor vehicles
• Jewelry
• Family heirlooms such as paintings, furniture, jewelry and more
• Contents of your home and other belongings
• Digital Property such as a photo library, personal music, online accounts with money, and anything online whether it has monetary or sentimental value
• Pets and long-term care for pets

Should childless couples in Wisconsin set up a trust?

A trust is a legal entity that holds your assets, designates your beneficiaries, and specifies your wishes for distributing the assets. A trust can also help provide some protection from taxes for the beneficiaries.

Trusts are a utilitarian consideration for many kinds of estates. While you may prefer to line-item your property and wishes for distributing in your will, the process of distributing your wishes might be better managed through a trust.

Marital property agreements in estate planning

Married couples and couples who plan to marry may benefit from working with a lawyer to create a marital property agreement (prenuptial or postnuptial). Marital property agreements can be applied in situations of both divorce and death. 

A marital property agreement clarifies who owns what, and can significantly simplify the distribution of assets when a spouse passes away. Spouses may agree to own all or a portion of various assets. Then a will can establish the plan to distribute the deceased’s assets.

Estate planning for couples should cover all bases

Married couples with any measurable assets should work with an attorney so their estate plan is clear and to avoid messy disputes. Estate planning attorneys work with couples to produce wills that are seamless and satisfy the wishes of both spouses. A marital property agreement will likely aide in the process. 

Contact the experienced estate planning attorneys at Murphy Desmond to help you prepare a will and a marital property agreement that gives you peace of mind.

Published October 1, 2019