When you build a life with someone, protection does not stop at the day-to-day. Estate planning is one of the quiet ways spouses continue showing up for each other, even when life takes an unexpected turn.
Marriage creates planning opportunities that simply do not exist for unmarried couples. Used thoughtfully, these tools can help provide financial security, preserve family relationships, and reduce uncertainty for the person you love most.
Below are several strategies that married couples often use to protect one another, depending on their goals, family dynamics, and long-term plans.
Lifetime Qualified Terminable Interest Property (QTIP) Trust
When one spouse owns significantly more assets than the other, a lifetime QTIP trust can be a powerful planning tool.
A lifetime QTIP trust allows the wealthier spouse to transfer assets into an irrevocable trust for the benefit of the other spouse. The beneficiary spouse is entitled to income from the trust during their lifetime and may also receive principal for specific purposes, such as health care or other needs outlined in the trust.
This structure provides support without giving outright ownership, which can offer added protection from creditors and outside claims. It is also commonly used in second marriages, where one spouse wants to ensure their current partner is financially supported while preserving remaining assets for children from a prior relationship or other chosen beneficiaries.
When the beneficiary spouse passes away, any remaining trust assets are generally included in their estate, allowing use of their federal estate tax exemption. If the beneficiary spouse dies first, the trust may continue for the benefit of the original grantor, depending on how it was drafted and applicable state law. Ultimately, after both spouses have passed, the remaining assets are distributed according to the instructions set at the trust’s creation.
Because lifetime QTIP trusts are irrevocable, careful drafting matters. Without specific language, a divorce could leave a former spouse entitled to lifetime benefits. Thoughtful planning ensures the trust continues to reflect your intentions even if circumstances change.
Spousal Lifetime Access Trust (SLAT)
A spousal lifetime access trust, or SLAT, allows one spouse to gift assets into an irrevocable trust for the benefit of the other spouse while removing those assets from the grantor’s taxable estate.
Unlike a lifetime QTIP trust, a SLAT does not require that the beneficiary spouse receive income. Access to income or principal depends entirely on how the trust is structured. This flexibility makes SLATs attractive for couples seeking asset protection and estate tax efficiency while maintaining indirect access to the funds during the marriage.
Children or other family members can also be named as current beneficiaries, creating additional flexibility and long-term planning opportunities.
As with other irrevocable trusts, divorce considerations are important. If the marriage ends, the beneficiary spouse typically retains access to the trust, while the grantor spouse loses any indirect benefit. For that reason, SLATs are often drafted to limit benefits to a current spouse or include additional beneficiaries to maintain adaptability.
If both spouses wish to use similar trusts, the planning must be done carefully. Improperly structured reciprocal trusts can undo the intended tax benefits. Experienced legal guidance is essential when coordinating these strategies.
Community Property Considerations
If you live in, or own property in, a community property state, ownership classification becomes especially important.
Before funding any trust, it is critical to confirm whether assets are community property or separate property. In some cases, funding a trust may require a partition agreement or marital agreement to change how property is owned.
Because these steps can alter legal ownership and future rights, they should be handled with care and explained clearly. Understanding what you own, how it is titled, and how it fits into your plan helps prevent surprises down the road.
Portability and Planning for Uncertainty
With the federal estate tax exemption currently set at historically high levels, many families assume estate tax planning is unnecessary. However, current law provides that this exemption is scheduled to change, and future amounts remain uncertain.
Portability offers a way to plan around that uncertainty.
Portability allows a surviving spouse to use any unused portion of their deceased spouse’s federal estate and gift tax exemption, known as the deceased spouse’s unused exclusion, or DSUE. When properly elected, this allows the surviving spouse to combine exemptions, increasing the amount they can transfer without federal estate or gift tax.
To preserve portability, a federal estate tax return must be filed after the first spouse’s death, even if no tax is due. Without that filing, the unused exemption is lost.
It is also important to note that portability applies only to the most recently deceased spouse. If you remarry, careful timing and planning are required to preserve earlier exemptions.
Thoughtful Planning Is an Act of Care
Estate planning is not about anticipating the worst. It is about removing unnecessary stress, confusion, and risk for the person who will have to carry on without you.
Every couple’s situation is different. The right plan depends on your assets, your family, and the legacy you want to leave behind.
We help couples design estate plans that protect spouses, respect family dynamics, and adapt as life evolves. If you are ready to start the conversation, we invite you to schedule a consultation to explore what planning could look like for your family.
