Can I Have an Estate Plan Without My Spouse?

Including your spouse in estate planning is a good idea in nearly every case. If there are barriers to having this conversation — be they financial, emotional, or interpersonal — it is best that they are resolved so the couple can plan for the future together.

At the same time, the overwhelming majority of wills are written to apply to one individual. This is for a good reason: joint wills, mutual wills, and overly restrictive mirror wills can all lead to major problems, both during and after probate. Drafting a will, then, is in many ways a private matter.

Even still, there are countless reasons to share information related to your estate plan with your spouse. Ideally, they would be involved in the planning process. Further, realize that spouses are entitled to a certain share of the estate in nearly every scenario. Really, the only valid reason not to include them in your plans is if there is an impending divorce.

You can discuss your concerns with an experienced New Mexico estate planning lawyer. They’ll provide you with recommendations tailored to your specific situation. Call New Mexico Financial & Estate Planning Attorneys at (505) 503-1637 or contact us online to schedule a confidential case review and consultation with no obligation.

Am I Allowed to Keep My Estate Plans Secret From My Spouse?

Yes. All estate planning documents can be considered private, personal matters unless the spouse is a joint owner of or otherwise entitled to the estate property mentioned in the plans.

If you wish to name a role for your spouse in your estate plans — such as by designating them as your executor (AKA personal representative), survivor trustee, estate beneficiary, or agent with power of attorney — then it’s legal to hide this fact until the time comes to activate your estate plan. It may not be a good idea, though, considering that your spouse may refuse to serve or feel unprepared given the lack of notice. But it can be done.

With all that said, married individuals forming (or revising) their estate plans should keep a few things in mind:

• Your spouse is entitled to a certain share of the estate, including half of the community property acquired during the marriage, a family allowance payment, and any property otherwise held in joint tenancy by them.
• A spouse can use their disinheritance from a will or (disproportionate share of the estate compared to someone with a more distant relationship to you) to allege a “suspicious circumstance,” which may enable them to have the will declared invalid because of undue influence. They may also seek to have the will invalidated because of another reason, such as lack of testamentary capacity, fraud, duress, or misrepresentation.

As you can see, it is possible to keep the contents of your estate plan a secret, but it is practically impossible to keep your spouse out of the estate plan entirely. They are always entitled to receive their family allowance payment (before any other estate claims are paid) and at least one-half of the value of all community property.

If you have valid reasons for attempting to minimize your spouse’s involvement in your estate plans and their share of your estate, then it is urgent that you speak with an estate planning lawyer in New Mexico. They can help you understand the legal expectations you must navigate and the options that may be available, based on your unique situation.

How a New Mexico Estate Planning Attorney Helps You Plan With (or Even Around) Your Spouse

Every estate plan is unique, but anyone who resides in the state of New Mexico (or who owns property subject to the estate laws of New Mexico) has the same laws apply to them. These laws presume that a spouse deserves to be taken care of in the aftermath of their partner’s death. They also presume that the testator (the person writing their will) would want their spouse to have a significant share of the estate’s assets.

When you meet with an experienced lawyer from New Mexico Financial & Estate Planning Attorneys, they will help you understand how the law might affect your estate. If you have specific estate plans in mind — or have already created components such as a will or power of attorney document — they can also review these plans to see if they would likely satisfy state probate and community property laws.

During your discussion, you can find out how the following might apply to your unique situation:

• Your personal, marital, and estate property rights
• Your spouse’s personal, marital, and estate property rights
• Mechanisms that might affect your spouse’s entitlement to certain property, such as a valid, signed prenuptial agreement
• Options for working within existing state laws to seek the optimal outcome, given your goals
• Recommended versus discouraged pathways towards achieving your stated goals
• Other professionals who may be able to help you resolve your gap in understanding between you and your spouse — or the outcomes you hope to achieve — through estate planning
• Methods of protecting your assets and your estate if you have concerns that your spouse may try to take possession of your entire estate or otherwise act contrary to the interests of your estate plan, as intended

We know that these issues can be complicated, especially if you are the victim of financial abuse or have concerns about a spouse “hijacking” your estate after you die. You may also have limited options to divorce your spouse, or you may wish to stay married but protect your estate from a worst-case scenario.

In any event, a private, confidential conversation with an estate planning attorney is often the best place to start. They can advise you based on your unique situation and reveal how the law would likely factor into the scenarios you hope to achieve — or those you wish to avoid.

What Is a Spouse Entitled to Receive Under New Mexico Probate and Property Law?

There are two main categories of assets where your spouse’s entitlement share is practically indisputable:

• Community property — New Mexico is a community property state. That means couples jointly own all assets (and debts) acquired during the marriage, with limited exceptions. After the death of a spouse, the surviving spouse is entitled to recover at least 50% of the value of all designated community property (NM Stat § 45-2-807). The decedent is able to gift the remaining 50% through their will or other means.
• Family allowance — State law entitles a surviving spouse to receive $30,000 in cash from the total value of the probated estate (NM Stat § 45-2-402). This payment is granted to a surviving spouse prior to any other claims or expenses paid from the estate.

Any estate plan that seeks to minimize the share of value given to a surviving spouse must account for these two factors. One of the methods of doing this is to have property designated as separate.

What Property Is Considered Separate Under New Mexico Law?

Separate property, as far as a marriage is concerned, includes:

• Property acquired before the marriage
• Property designated as separate according to a mutual agreement, such as a prenuptial agreement, postnuptial agreement, or a valid signed agreement mentioning the specific property in question
• Certain property acquired as a gift or inheritance is intended to only go to one spouse
• Income, equity, or other forms of increased value generated from separate property

Note that common methods of asset protection generally do not apply to spouses and their entitled share of community property. In other words, a spouse cannot place community property into an irrevocable trust that denies the other spouse a power of appointment or other form of access without that spouse’s mutual consent. Put even more simply: it’s not legal to “hide” community property from a spouse or to try to place it out of reach.

If someone wishes to make sure that property is considered separate, then they can have their spouse sign an agreement relinquishing their entitlement to the property (or acknowledging that they had no entitlement to it). These agreements have to be capable of withstanding a potential court challenge, as well, so the guidance of an experienced attorney is recommended.

Using a QTIP Trust (Or Alternatives) to Protect Estate Assets

One common method used to accommodate a surviving spouse while preserving assets for children (or other preferred beneficiaries) is the qualified terminable interest property or “QTIP” trust.

Property can be placed into the QTIP trust either during the lifetime of the person forming the trust (AKA the “grantor”) or during probate as a provision of their will. This trust property can be used to generate income, such as business income, property rental income, or investment income. The surviving spouse is typically entitled to all of this income, which supports them throughout their remaining lifespan.

Once the surviving spouse passes, the trust’s contents can pass to the grantor’s intended beneficiaries. This structure is advantageous for blended families, individuals who have children from a previous marriage, or property that was inherited. QTIP trusts are common in family business situations, for example, where the grantor intends for their ownership share to eventually transfer in whole to their children.

Property placed into a QTIP does not have to be considered separate, but the surviving spouse may have the ability to access the trust’s contents at any time to retrieve community property — or change the person who is entitled to inherit it. This ability is known as the “power of appointment.”

To protect the trust property the grantor wishes to pass down, it may be prudent to grant the surviving spouse access to certain types of property for specific reasons. Common reasons include a need to keep a primary residence, pay for medical expenses, pay for educational expenses, or use the assets to provide other types of necessary maintenance.

There are also other types of trust arrangements that may be beneficial in situations like these, such as an A-B trust or an irrevocable asset protection trust. Talk to a New Mexico trusts lawyer to learn more about your options and decide on the best arrangement for your unique goals and situation.

Avoiding Will Contests and Claims Against the Estate

Surviving spouses can wield a lot of power against an estate after their spouse dies. For example, many states (including New Mexico) have legal frameworks that assume that a spouse will be a primary heir to the estate.

If someone else claims a larger share than the spouse — meaning a significant portion of the estate goes to distant relatives, friends, a charitable cause, or someone else with a less immediate relationship to the decedent — then the spouse may be able to challenge the validity of the will. If the will is declared invalid, the surviving spouse is entitled to 100% of all of the estate’s community property and ¼ of all of its separate property.

Methods that can be used to reduce the chances of a successful will contest include:

• Ensuring that your will is properly signed, witnessed, and executed
• Submitting to cognitive tests to demonstrate that you were of sound mind when you created your estate plans
• Creating witnessed statements documenting that you understood the likely outcome of your estate plans, which could include an explicit declaration that you meant to reduce your spouse’s entitled share to your estate
• Taking measures to ensure that other parties aren’t seen as manipulating or taking advantage of you, which may include disclosing your plans to a trusted party like an attorney or associate
• Understanding other relationship dynamics that could cause friction after your death, such as an estranged child, children from a previous marriage who disapprove of your current spouse, or a spouse who exhibits narcissistic tendencies
• Exploring your options for divorce. If your goal is to remove your spouse entirely from your estate plan, this happens automatically in the case of your will, revoking any provisions that apply to your (now former) spouse, unless you explicitly state otherwise

Working with an experienced New Mexico estate planning attorney can be a vital part of this process. They can help you take prudent steps to cover your bases, protect your assets, and preserve inheritances for loved ones. Your attorney can also help you document any issues that could come up after your death, such as if your family has a history of conflict or any previous attempts at taking possession of estate property.

Prepare for the Future With New Mexico Financial & Estate Planning Attorneys

Producing the legacy you want to see left behind can be a delicate subject, especially when you have concerns about your loved one’s ability to follow your plans as written. No outcome is guaranteed, but the more you understand the law and the more carefully you prepare, the more likely it is that you can achieve the goals you set.

New Mexico Financial & Estate Planning Attorneys is here to help. By revealing your options and guiding you through each step of the process, you can feel confident that the world you want to leave behind can become a reality. Call (505) 503-1637 or contact us online to schedule a confidential consultation and estate plan review.