Q: Is it legal for a spouse to set up a trust without the other spouse's consent (in Maryland)?
Asking for a friend who has been married over 30 yrs to her spouse. Her husband has Parkinson's but has granted power of attorney to his brother and won't tell her the terms of the trust. The assets are marital property that are in his name.
A:
Yes, it is legal for spouses to plan independently of each other although not typical. It is highly preferred that spouses keep each other appraised of their plans.
The law does offer some protection in that a spouse cannot be entirely disinherited - at least 1/3 of a person's probate estate must go to their surviving spouse. This is so even if the deceased person writes the spouse out entirely of their Will. However, things can get very complicated when one spouse conveys assets outside of a Will because these pass outside of probate.
In a healthy marriage one would expect a husband and wife to plan together (or at the very least share planning with the other), however, if after someone dies the surviving spouse discovers they have been "disinherited" they should seek legal counsel to get help demanding their statutory rights to a part of the estate.
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