His and Hers Living Trusts? Sometimes it makes sense.

Most married couples I work with create a "joint" living trust.  Basically, a joint living trust is an enforceable legal document created by two people outlining the following (1) Who they are and who's in charge if they can no longer manage their own affairs - due to death or disability, (2) and who gets what after they both pass away. 

Sure, I'm simplifying it quite a bit but the point is that it's a joint document created by the married couple.  After creating their living trust, the couple needs to "fund" this trust by re-titling their assets in the name of the trust. So their assets wouldn't be owned in their names anymore, but rather by their trust.  For example, their house would not be owned by "John Smith and Mary Smith as joint tenants."  Instead, their house would be owned by "The Smith Family Trust, dated January 23, 2017."  In some cases, the assets wouldn't be owned by the trust per se, but instead might be payable to the trust by naming the trust as a beneficiary of certain assets.  For example, the couple might choose to name their trust as the beneficiary of a life insurance policy.

So now that we know that most married couples create a joint living trust, there are times when it makes sense to have "his" and "hers" living trusts.  Instead of having a common joint trust, each spouse would have their own living trust.  This solution might make sense when husband and wife are trying to maintain separate assets, especially if they are getting married later in life.  Each person may already have their own assets and their own ideas of how those assets should be distributed.  They may wish to keep their assets separate.  They might each have children from prior relationships.  In some cases, one person might already have a living trust in place.  As such, in certain cases, it might make sense to establish his and hers living trusts.

Therefore, husband John would have his own living trust named "The John Smith Living Trust," and his wife would have her own living trust called "The Mary Smith Living Trust." Each trust would be managed by the respective spouse - John would manage his trust and Mary would manage her trust.  They can make whatever changes they want to their own trusts, outline any beneficiaries they want, etc.  Basically, they'd be king/queen of their own castle.  It might also be a good idea for John and Mary to sign a document outlining this understanding they have between one another. 

If they want to have some "joint" assets, they can always do that - via a joint checking account or other solution. Basically, John's trust assets (those titled in the name of his trust) would be distributed according to his wishes, and Mary's trust assets (those titled in the name of her trust) would be distributed according to her wishes. That being said, each party can still make distributions and provisions for their spouse, but having his and hers living trusts might make sense if they both want to maintain some sense of their own autonomy over their own assets.  After all, couples who get together later in life often have their own assets and often desire to mantain control over those assets.

If you would like to discuss your estate planning needs, please call our office at (661) 414-7100.  Visit our "Get Started" or our "Contact" page if you need assistance.