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Leaving Everything to Your Spouse May Not Be the Best Plan for Your Estate

Married couples have different ways to plan for the future of their estates. In most cases, a will is drafted that leaves remaining assets with the surviving spouse. But this may not be the best plan for your estate

State laws relating to community and separate property, managing exactly how your assets are distributed, and preventing common issues related to estate planning are just some of the factors that you need to consider before leaving everything to your spouse.

Marriage and Property Laws

Each state has property laws that must be understood when planning for your estate. Community property is that which is acquired during the marriage period. Separate property is obtained before a marriage or received as a gift or inheritance.

In states that recognize community property, the death of a spouse entitles the surviving spouse to the right to let go of their share of a given asset. This typically occurs when the spouse who has died has left his or her share to a third party.

Separate property states don’t entitle surviving spouses to the possession of a given asset even if it was acquired during the marriage.

The state of Georgia isn’t a community property state. Surviving spouses aren’t automatically entitled to any assets upon the death of their partners.

The laws in Georgia do allow the surviving spouse to claim financial support from the estate in most cases. The courts determine how much support is granted based on the needs of the surviving spouse and other factors.

Protecting Your Assets

Protecting your assets is the first step in determining how they’ll be distributed upon your death. You can use a trust to dictate how your assets will provide for your loved ones and settle outstanding financial obligations.

A trust can be used to limit how your assets are distributed including their distribution amounts and frequency. Age requirements and other strategies can be used to dictate when and how your loved ones will receive the assets you’ve set aside for them.

Asset distributions can also be made in response to certain conditions such as medical and educational needs.

Getting the Most Out of Your Estate Planning

If a spouse dies without a will or trust, Georgia law allows the surviving spouse to receive a minimum of one-third of the estate.

In cases where there are no children involved, the spouse may receive the entire portion of the estate.

Also, estate laws in Georgia only apply to marriages that are still in place. A divorce removes the spouse from the terms of a will, even if the original will wasn’t updated before the spouse’s death.

But a will must go through the probate process and is a broad guideline for how your estate will be handled.

Using a trust protects those assets and specifies how they are to be distributed upon your death.

A trust doesn’t have to go through the probate process. More importantly, it remains protected against the legal claims that are often made in estate planning cases.

Leaving everything to your spouse may seem like the obvious choice when planning for your estate. But dictating how your assets will be distributed can protect them after you’re gone.

Knowing how states treat community and separate property, using a trust to protect your assets, and avoiding common estate planning mistakes gives you peace of mind and ensures that your loved ones are taken care of for years to come.


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