Estate planning for couples without children

Search for estate planning for childless couples and most advice stops at the first step: name each other. That part is easy. The harder question is the line after it: who acts once you're both gone, or if you're both in the same hospital?

For a married couple without children, there's no obvious next name. This page walks through how couples answer that, role by role. For the bigger picture of who the law picks by default, see who decides for you when you can't.

Why the second name matters more than the first

Naming your spouse covers the first emergency. It doesn't cover three situations that come up for every couple.

• You're both hurt at once. A car accident or a house fire can leave neither of you able to act.
• One of you is caring for the other. The healthy spouse may be too stretched to also run the finances, or may fall ill too.
• The second death. After one spouse dies, everything usually passes to the survivor. What happens next follows only the survivor's plan.

That third point catches many couples. If the survivor dies without a will, the estate passes to the survivor's own relatives. The first spouse's family isn't on that list at all.

What Washington law does if you write nothing

Here's the default in Washington, the state we use as a worked example. Other states differ.

If one spouse dies without a will and there are no children, the surviving spouse receives all of the deceased spouse's share of community property. The survivor also receives three quarters of the separate property if a parent, brother, sister, niece or nephew survives. The rest goes to those relatives (RCW 11.04.015).

If no parents, siblings or their children survive, the spouse receives everything. Our page on dying without a will and without close family follows the rest of that chain.

If you die close together

Washington has a 120-hour rule. Unless there's clear and convincing evidence that one spouse outlived the other by 120 hours, each is treated as having died first (RCW 11.05A.020).

In practice, each estate then passes as though the other spouse had already died. So each of you needs a plan that works without the other in it.

Community property has its own rules

Washington is a community property state. Neither spouse can leave more than half of the community property by will (RCW 26.16.030).

Some couples also sign a community property agreement, which Washington allows under RCW 26.16.120. It can settle what happens at the first death. It doesn't name who takes over after the second.

Who to name after each other, role by role

Every plan names people to four roles. Our series on the four roles in an estate plan explains each one. For a couple, the pattern is usually "each other first, then a shared second name."

Washington lets you name successor agents in a power of attorney. A successor acts only after the person ahead of them resigns, dies, becomes incapacitated or declines (RCW 11.125.110). So naming your spouse first and a backup second works exactly as you'd expect.

Our page on naming a backup in every role explains why so many plans skip this step.

You don't each have to pick the same second name. Some couples do, so one person handles everything after both deaths. Others each choose someone from their own side.

The usual candidates for the second name

Couples without children tend to look in four places. Each has a real strength and a real drawback.

In Washington, a nonresident can serve as executor if they appoint a local agent to receive court papers. Washington trust companies can also serve (RCW 11.36.010).

Unless the will says otherwise, a Washington executor is allowed compensation the court finds just and reasonable (RCW 11.48.210). That's worth a conversation if you're asking a niece to give up months of evenings.

For a closer look at choosing the person who settles your estate, see who should be your executor. If the second name is a professional, our comparison of an attorney, a trust company or family sets the choices side by side.

Deciding who receives what after both of you

This is the conversation many couples put off. Once you've both died, the survivor's documents decide everything, so agree on it while you can.

Some questions that help:

1. Should each side of the family receive something, even if one spouse dies first?
2. Are there nieces, nephews or godchildren you'd like to remember by name?
3. Is there a charity, a shelter or a school you've supported for years?
4. Who takes the dog, and is there money set aside for her care? A pet trust can hold it.

Then make sure the beneficiary names on retirement accounts match. In Washington, IRAs and other accounts with a named beneficiary are nonprobate assets (RCW 11.02.005). They skip the will entirely.

A typical case

Here is a typical case, a composite. Ruth and Tom are 68 and 71, married 35 years, living with their terrier, Gus. Ruth's sister lives nearby; Tom's nephew lives in Ohio.

They name each other first in every role. Ruth's sister is the second name for both medical powers of attorney, since she can be at the hospital in twenty minutes. For executor and successor trustee, they name Tom's nephew, with a trust company as backup.

Their wills leave a share to each side of the family and a gift to the shelter where they found Gus. If one of them dies first, the survivor's plan still carries out what they decided together.

When a professional makes sense

If your siblings are your age and your nieces and nephews are far away, a professional can fill the second line. A fiduciary is legally required to act in your interest and follow what you wrote.

Kinly is one option. A couple's membership includes four documents for each of you, a care plan and a trust company that can serve first or as backup. Our guide to choosing professional help compares it with other options.

Common questions

Who inherits if a married couple without children both die without wills?

It depends on who dies second and on state law. In Washington, the survivor usually inherits from the first spouse. When the survivor dies, the estate passes to the survivor's own relatives under RCW 11.04.015, so the first spouse's family may receive nothing.

What happens if we die at the same time?

In Washington, if it can't be shown that one of you outlived the other by 120 hours, each is treated as having died first. Each estate then passes as if the other spouse had already died. That's why every role needs a second name.

Should we name the same executor?

You can, and it often keeps things simple. One person settling both estates sees the whole picture. But it's fine for each of you to name someone from your own side, as long as each will has a backup.

Can a trust company be our executor?

In Washington, yes. Trust companies organized under Washington law can serve as personal representative under RCW 11.36.010. Many couples name one as backup behind a relative.

Sources

• RCW 11.04.015: Descent and distribution
• RCW 11.05A.020: Minimum survival requirement
• RCW 26.16.030: Community property defined, management and control
• RCW 26.16.120: Agreements as to status of community property
• RCW 11.125.110: Coagents, successor agents
• RCW 11.36.010: Persons qualified to act as personal representatives
• RCW 11.48.210: Personal representative compensation
• RCW 11.02.005: Definitions, including nonprobate assets