Is setting up a will/trust without spouse consent a bad idea?
January 11, 2010 1:16 PM   Subscribe

Want to set up a will/trust without spouse consent. Is it a bad idea?

It's been over a year since our child's birth and we dont' have a will/trust set up. On the surface, it was about funds and agreeing on the order of guardianship (who they are isn't the issue, it's the order). But it goes deeper. Spouse is incredibly stupid with money, is sitting on getting it done, won't save to do it. I have the funds to do it and the lawyer said since everything from house to assets are in my name only, I have the right to get it done (revokable). I can even put down stipulations on spending even if only I die and my spouse is alive. This has been a concern for me since my spouse is incredibly stupid with money, doesn't have their own health insurance if I die (and doesn't see the point), and I want to ensure they don't blow the whole thing on dumb stuff.

I wanted to get it done, appoint guardians, a trustee, and put stipulations on the spend if I die or if we both die.

The main issue is I don't want to tell the spouse I did this because they will disagree on guardianship order if we both die. For them, it's a matter of blood vs best friend. Spouse has family, I don't and rely on my best friend as family and feel they will do a better job at being a guide--financially, emotionally, spiritually, etc. than my spouse's choice as primary.

Yes, this speaks volumes about our marriage (which might end) and my intent is not to keep anything of finances away from my husband in the event of my death--just to plan accordingly and set limits ensuring the financial peace of mind for both my spouse and our child instead of having all assets spent in a matter of a few short years leaving the question of is the house paid off, does our child have health insurance, is he going to be ok if we both die, will he have the funds to go to college, etc.
posted by anonymous to Law & Government (19 answers total)
Do you have a second bank account in your name only? If not can't you just open one and will it's contents to your child and make it so that they can only access it once they are 18?

And how likely is it that both you and your spouse will die before your child grows up? I mean it happens, but might you have a problem with anxiety (possibly caused by a bumpy marriage)?
posted by WeekendJen at 1:28 PM on January 11, 2010

See a lawyer, write a will.

Make sure that the trust will also cover any future children you might have.
posted by mareli at 1:36 PM on January 11, 2010

It's hard to tell in what context you want to know if this is a bad idea. Practically? Legally? Ethically?

I think you should also separate out the finances and the guardianship issues. It's good to plan for what would happen if both of you were to die, but that is highly unlikely.

You really seem like you want to plan for if something happened to you. You need to think that through a little bit more, I think. What type of financial situation would you want your child to be in, and do you have the money to make that happen. There are a lot of legal methods to achieve your goals, depending on your jurisdiction... but you seem concerned as well that your husband might get angry or something.

There's the rub-- from a practical perspective sure, setting up a secret life insurance policy to benefit a trust that is not managed by your husband could certainly accelerate your marriage ending, if he found out.
posted by miss tea at 1:37 PM on January 11, 2010

I'd say that secrecy in marriage is a sure recipie for disaster. Get this squared away right, it will save you from having the corpus of your trust eaten up by litigation.
posted by Ironmouth at 1:42 PM on January 11, 2010

You may legally be able to do this, and I'd definitely do it as soon as possible to ensure that your family is taken care of in the event of your and/or your spouse's death.

However, I'd also seek some couples therapy, and then once in therapy, discuss revisions to the document. Even if your marriage is ending, counseling for both of you together will help you work to raise your child together. Your spouse has a right to help make decisions about your child and your shared finances, and you need to find productive ways to talk about this, even if you do split up.

Good luck!
posted by decathecting at 1:48 PM on January 11, 2010

Would it be a bad idea to go behind the back of your co-parent? For setting up a trust, no, not necessarily. If you feel this strongly about making sure your child has some insurance in the future and you have the funds, definitely set up a trust. If you're worried about your spouse having control over the money should you die, have your best friend be the administrator of the trust should you die before your child reaches the age of 18 (or whenever you decide).

Deciding who should have guardianship? A very bad idea to go behind your co-parent's back. The child is also his and, unless you know his chosen guardians would be harmful to the child, you are taking a huge decision away from him. What if you go behind your spouse's back, set up a secret will, and, in the meantime, he makes a will of his own? All sorts of problems could arise for your chosen guardian, that would certainly make a horrible situation (may it never happen) much, much worse.

Both of you have made this child and you need to work together in the child's best interest, whether you stay married or not. If you want to make a will, you need to agree together on guardianship (possibly split between spouse's family and friend?).
posted by brambory at 1:49 PM on January 11, 2010 [2 favorites]

You can't appoint guardians for your child without your spouse's consent, unless your spouse has terminated his or her parental rights.

And ethically it doesn't make any sense. I get that you believe your money is your money. However, your child isn't just your child; he or she is your spouse's child, too.
posted by Sidhedevil at 1:52 PM on January 11, 2010 [1 favorite]

You have every right to take care of the financial aspects of this on your own (and you should; this kind of preparation is no joke. Were I in your shoes, I would go right ahead in that regard). It's your money; not your spouse's.

But as others have said, though, guardianship is another issue. If you can square up the financial side individually (by which I mean actually having legally binding documents, not just plans) before bringing up guardianship issues, that might be the best route.
posted by ocherdraco at 2:09 PM on January 11, 2010 [1 favorite]

You've already talked to an attorney, so you know it can be done in your state. I'm not sure about custody if you die and your spouse survives. I don't think you can remove custody via a will.

However, it is feasible and often logical to put all of your assets into a trust that spouse cannot touch, and set someone else as the executor. There are tricks that can stop the spouse from litigating, but that's an attorney's job and I have no real idea how that works, only that it can be done.

I'm sorry that you find yourself in this situation. I recommend that you find estate attorneys that you trust, and then let them do the voodoo they do.
posted by dejah420 at 2:23 PM on January 11, 2010

If you're married, your spouse has a legal say in the house, the money and the child. Get a mediator and figure it out. Your spouse has a equal rights in this, and to try to bypass that is not going to be successful. I honestly find it quite disrespectful, as well.
posted by theora55 at 2:27 PM on January 11, 2010

We know that your spouse is "incredibly stupid" about money, and looks like they might be lazy, too. Get an estate attorney, get a will written up ASAP so that there's some kind of provision for a guardian should something happen, then be honest about what you've done with your spouse. Tell them you've done it, because you feel strongly it is vital to have something in place -- even if sub-optimal -- as soon as possible just in case something happens.

Then, say you're absolutely open to replacing it with an updated will, optimized based on what you both feel is best. Proceed to argue for the next five years or what-have-you, with your version of the will in place in the meantime. Plus, your spouse might surprise you, thank you for taking care of it ("because you know as well as I do that I'm incredibly stupid with money and stuff") and not want to make changes, or work well with you to make minor ones.

Of course, they might still get fighty about having a will in the first place, or whatnot, but that might just be more fuel on the getting-separated-or-divorced fire -- I'd say that if they get upset, that you suggest couples' counseling, with your disagree over will-or-not-will, insurance-or-not-insurance as the primary thing you want to discuss. That should give the therapist a good place to start helping them realize that it's time to act like a responsible adult for the sake of your child.
posted by davejay at 4:15 PM on January 11, 2010

Oh, there's one other option:

"Honey, we need to set up a will to provide for [child] in case something happens, and it's important we do it as soon as possible. I've made an appointment to get it taken care of; is there anything in particular you want to talk about, or should I just take care of it for now and we can make changes later if need be?"

Bank on their laziness, in short. Normally I'm not one for this sort of thing, but children need backup guardians, insurance and financial support -- it's more important than bickering, frankly.
posted by davejay at 4:19 PM on January 11, 2010

I'm not going to touch the guardianship question because I'm so appalled you'd go behind a co-parent's back about a thing this huge.

I will say that just having everything in your name doesn't automatically make it yours in all situations. In my state, anyway, anything bought with joint money (most things post-marriage, unless you were very very careful to never mingle pre-marriage assets with post) is community property, no matter how it's titled. Of course you can write up the documents, but it's possible (and in my state, very likely) that they won't stand up if contested. In short, this is not a question people online can answer with the data you've given us.

Now: Should you?

Are all these assets yours from before your marriage? Did you inherited it or anything else? In other words, is it 100% yours to deal with ethically? I don't mean, you think you put in more effort than he did, or he was an idiot with "his" half; I mean, does he agree it's your money? Would just about anyone? If so, write the docs and don't think twice about it.

Or does the money really belong to both of you but he just wasn't savvy/cynical enough to put his name on it? Or maybe his credit sucked so you agreed to put it in your name so you could get a checking account or the interest rates up or credit card rates down or what-the-heck ever? In short, back when you two were getting along, did you think of it as communal money? If so, it's not yours to make unilateral decisions about. Don't take advantage of his naivety. I see men doing this to their (usually younger, more trusting) wives all the time, and it's sickening. Don't be that person.
posted by small_ruminant at 4:24 PM on January 11, 2010

Concerning assets and financially providing for your child, sit your husband down and say "We really need to establish wills in order to protect our child. I am making an appointment with a lawyer and would like you to come with me, but if you refuse, I am still going and filing a will for my portion of the estate. If there are things you would like me to mention during the appointment, please let me know and I'll address them with the lawyer and let you know how things went." Then follow through.

As for appointing a guardian in the event of both of your deaths, I don't know what's legal, but ethically, even if divorce is in your future, you should not make this decision without your spouse's input and knowledge. Make your partner have the difficult conversation, and as some have already discussed, you should probably investigate couples' counseling.
posted by katemcd at 5:47 PM on January 11, 2010

How would you feel if your spouse set it up without your consent?
posted by Soliloquy at 8:46 PM on January 11, 2010

To clarify:

Guardianship issue is if we both die (if only I die, of course my husband is guardian). We agree on the people. What we don't agree on is who is first and who will be second. He wants his cousin. I want my best friend. I feel his cousin will favor his daughter and our son will always come 2nd and not guide him in good and bad times. My friend, however, I know will put her foot down if our son starts to go down a bad route. He feels that my friend is too dramatic and since she's not blood, too bad. To me, blood means squat. It's about best interest. And since I'm an only child, I don't have a blood relative. I have to have my best friend and we both agree that beyond these 2 people, we have no options.

And he won't like the monitary restrictions I place on both him and our son if I die. It's not like I want to keep him from receiving money. I want to make sure the house is paid off, health insurance is purchased, taxes are paid, son can go to college and get the rest when he's 30 years old. Not remarry and have him and his new wife spend it and tell our son "meh, I never went to college."

The bottom line is if he dies, I only receive life insurance and won't be spending it on vacations, cars, etc. If I die, he receives life insurance, my 401k, my parents' inheritance, and the house. That's a lot for him (and our son) to receive all at once and go on vacations, buy a bigger house, loan to friends, etc. I've seen twice how he spent his worker's comp monies ($60k) and in 6 months it was gone. I never was consulted. He got the check and immediately booked a 2 week trip, loaned to friends, bought a car, and I can't even account for what he did with $30-40k of it.
posted by metajunkie9 at 7:37 AM on January 12, 2010

No one is arguing you don't have good reasons and your frustration comes through loud and clear but these are decisions that simply aren't yours to make by yourself, and to make them and then keep them secret is straight up unconscionable. Don't do it. It's sneaky and manipulative and beneath you.

If you want to force the issue, and it sounds like it needs forcing, use katemcd's approach.
posted by small_ruminant at 9:19 AM on January 12, 2010

I suspect all of this will be easier to sort out (other than guardianship) once you get a divorce. The contempt and hostility is loud and clear here. Not that I blame you for being pissed the hell off at husband's money flaky (been there), but it'll be easier to sort this stuff out to your own choice when you're just not married to him any more.
posted by jenfullmoon at 1:05 PM on January 12, 2010

I've been thinking about this question off an on since it was posted. It seems like you have a lot of contempt for your husband. I don't say that to be judgmental. But when there's contempt for a partner in a relationship it's a terrible sign. The relationship might not be DOA but it's critical. And you yourself state the marriage may end.

While I understand the desire to go behind your husband's back on the will/trust situation, I think you need to figure out the marriage first and consult with a lawyer or lawyers well versed in estate and divorce law before you set up a trust. IANAL but I can imagine a divorce getting pretty complicated if it came out that you set up a trust your husband did not know about. Perhaps especially so if you live in a community property state. These sorts of things can drag out for years and suck you both dry financially. If you are heading for a divorce and have not inherited anything from your parents yet it may be best to divorce before that happens. These are the sorts of things to discuss with your lawyer.

As far as the guardianship goes I think you and he can each name a guardian in your own wills but I don't think there's any way to prevent his cousin from becoming the guardian in the event that your husband dies after you and has named the cousin in his will.
posted by 6550 at 11:24 AM on January 13, 2010

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