A single joint living trust with your spouse can simplify the management of shared assets, but separate trusts may offer enhanced asset protection and tax planning opportunities. Which option is right for your estate plan depends on a variety of factors, including your and your spouse’s combined assets, financial goals, family circumstances and applicable state law.
Living trust benefits
There are many benefits of including a living trust (also known as a “revocable” trust) in your estate plan. This trust type allows you to minimize probate expenses, keep your financial affairs private and provide for the management of your assets in the event you become incapacitated.
Importantly, a living trust also offers flexibility: You’re free to amend the terms of the trust or even revoke it altogether at any time.
A single joint trust
If you’re comfortable with your spouse inheriting your combined assets (and vice versa), a joint trust can be a good choice because of its simplicity. It avoids the need to divide assets between two separate trusts, and funding the trust is a simple matter of transferring your combined assets into it.
In addition, during your lifetimes, you and your spouse have equal control over the trust’s assets. This can make it easier to manage and conduct transactions involving the assets. But it can be a negative for spouses who aren’t comfortable sharing control of their combined assets.
Separate trusts
Not wanting to share control of assets is one reason to set up separate trusts. Another is asset protection. If shielding assets from creditors is a concern, separate trusts can offer greater protection. With a joint trust, if a creditor obtains a judgment against one spouse, all trust assets may be at risk. But a spouse’s separate trust is generally protected from the other spouse’s creditors.
Also, when one spouse dies, his or her separate trust becomes irrevocable, making it more difficult for creditors of either spouse to reach the trust assets. Keep in mind that the degree of asset protection a trust provides depends on the type of debt involved, applicable state law and the existence of a prenuptial agreement.
Don’t forget to consider taxes
For most married couples today, federal gift and estate taxes aren’t a concern. This is because they enjoy a combined gift and estate tax exemption of $30 million in 2026 (adjusted annually for inflation ).
However, if your family’s wealth exceeds the exemption amount, or if you live in a state where an estate or similar “death” tax kicks in at lower asset levels, separate trusts offer greater opportunities to avoid or minimize these taxes. For example, some states have exemption amounts as low as $1 million or $2 million. In these states, separate trusts can be used to maximize each spouse’s exemption amount and minimize exposure to state death taxes.
It’s also important to consider income tax. As previously mentioned, when one spouse dies, his or her separate trust becomes irrevocable. That means filing tax returns for the trust each year and, to the extent trust income is accumulated in the trust, paying tax at significantly higher trust tax rates.
A joint trust remains revocable after the first spouse’s death — it doesn’t become irrevocable until both spouses have died. In this case, income is taxed to the surviving spouse at his or her individual tax rate.
Arriving at a decision
There’s no one-size-fits-all answer when deciding between a joint living trust and separate trusts. What works well for one married couple may not be the best choice for another, especially as family dynamics, wealth and tax laws evolve over time. If you’re unsure whether having one or two trusts better fits your needs, we can help.
___________________________________
We highly recommend you confer with your Miller Kaplan advisor to understand your specific situation and how this may impact you.
