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Who really owns what?

Posted by Bridget Murray | Aug 11, 2016 | 0 Comments

I periodically have clients come in who are married couples, but for one reason or another have held their real property and bank accounts in separate names for their entire marriage.  Now it is time to do estate planning, and I often suggest the use of a Revocable Living Trust.  

Revocable Living Trusts serve many purposes, but the most common advantages I see are probate avoidance and Massachusetts estate tax planning.  The couple would often both be Donors (ones who make and fund the trust) as well as the initial Trustees and Beneficiaries.  This means that as long as the clients are alive and competent, they have complete control over the trust assets and can do what they want to with them. 

However, the real estate is now own by "Susan Smith and John Doe, Trustees of the Smith Doe Trust".  One partner, usually the "owner" of the property will visibly flinch at the idea of "giving up" control of the real estate.  The belief seems to be that holding real estate in your name alone will somehow protect your interest in a divorce court, or for nursing home planning.  This is not true.  In Massachusetts, the courts look past the type of ownership when determining what is or is not a marital asset for divorce purposes.  (This presumes no prenuptial agreement).  In addition, government assistance generally hinges on household assets and income, not an individual's.   We do sometimes utilize having a single spouse on a deed in Medicaid planning, but at that point the goal is generally not keeping your spouse from getting your stuff.

Marriages are widely analogous to partnerships, and come with all kinds of special rights and obligations.  Many tax and Medicaid planning strategies ONLY work with married couples, and benefits like social security can be enhanced if you have a spouse.  But it does also mean, that your name on the deed or the bank account doesn't necessarily mean that it is yours alone...

About the Author

Bridget Murray

Attorney Murray has been practicing in the area of Estate Planning for twelve years. Prior to becoming an attorney, she wrote for The Economist in Tokyo, worked as a financial analyst for State Street Bank, and earned an MBA in International Management (Thunderbird School of International Busines...

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