One Trust or Two? Joint vs. Separate Living Trusts for Married Couples

Short answer, and then the reasons. For most married couples in the District of Columbia and Maryland who own everything together, have children only with each other, and are not near the estate tax line, one joint revocable living trust is fine and it is simpler to live with. Two separate trusts start earning their keep the moment any of those three things stops being true. That happens more often than people expect.

This is a question I get asked a lot, and it usually comes up sideways. A couple has been quoted a price for "a trust," singular, and somewhere in the paperwork they notice the plan has both of their names on one document. Or they have been told they need two, and they want to know whether that is real or whether somebody is selling twice as much work.

Both answers are real. It depends on facts that nobody can guess without asking.

What the two structures actually are

A joint revocable living trust is one document with both spouses as grantors. All the assets go into it. While you are both alive either of you can usually amend or revoke it, and the two of you together can do anything you want with it. When the first of you dies, the trust does whatever it says: sometimes it splits into subtrusts, sometimes it just keeps going with the survivor in charge.

Separate revocable living trusts means two documents. Each spouse has one, each one holds that spouse's own assets, and jointly owned property is usually split between them. The terms can be identical, or close to it, so the plan reads the same way from the outside even though there are two of them.

The documents cost about the same either way. What differs is the funding work, the administration after the first death, and what the structure can do that the other one cannot.

The case for one joint trust

Simplicity is the whole argument, and it is a better argument than lawyers sometimes admit.

Couples who have been married thirty years and pooled everything since the beginning do not think in terms of "my half." Dividing an investment account so half sits in one trust and half sits in another feels artificial to them, because it is. A joint trust matches how they already live. There is one document to sign, one to find later, one to amend when something changes.

Funding is easier too, and funding is where most trusts fail. A trust that never gets funded does not avoid probate, and it is the retitling step that people abandon halfway through. With a joint trust you retitle the house once, the bank account once, the brokerage account once. With separate trusts somebody has to decide which assets go where, and then actually do it, twice.

Administration after the first death can also be lighter. If the joint trust simply continues for the survivor with no forced division, there may be nothing to split, no separate tax identification number to get, and no allocation to argue about.

When separate trusts are the better answer

Here are the situations where I stop recommending the joint trust.

A second marriage, or children from a prior relationship

This is the clearest one. If you want your spouse taken care of for life and the remainder to go to your own children, a joint trust that the survivor can amend gives away the second half of that promise. The survivor can redirect the whole thing.

You can write a joint trust that locks down on the first death, and people do. What you get is a document that has to describe two different regimes, before and after, and allocate every asset between them at a moment when the person doing the allocating is grieving and also happens to be an interested party. Two separate trusts do the same job with less machinery, because each one only has to answer for one person's assets.

The District's estate tax, and the portability gap

The federal exemption is $15,000,000 per person in 2026, and it is portable. If the first spouse to die does not use it, the survivor can claim the unused amount by making an election on a timely federal estate tax return.

The District of Columbia does not work that way. The DC exclusion starts at $4,000,000 under the statute and is adjusted each year for inflation. The Office of Tax and Revenue published $4,873,200 for deaths in 2025, and it is worth checking the figure for the current year before you rely on it. The rates run from 11.2% to 16%, and there is no portability. If the first spouse to die leaves everything to the survivor and uses none of that exclusion, it is gone. Maryland's exemption is $5,000,000, has not moved since 2019, and is not indexed for inflation. Maryland does allow portability, though it takes a timely election on a Maryland estate tax return for the first spouse to die, and it reaches a spouse who died on or after January 1, 2019. Somebody has to know to file a return for an estate that owes nothing.

For a DC couple in the neighborhood of $5 to $10 million, this is the whole ballgame. Capturing the first spouse's exclusion means putting roughly that amount into a credit shelter trust at the first death instead of leaving it outright to the survivor. That requires assets to actually be owned by the first spouse to die, which requires knowing in advance which spouse owns what, which is exactly what a joint trust blurs.

A joint trust can be drafted to do this. It takes careful language about whose contribution funds which share, and it depends on a division nobody performs until after a death. Separate trusts get there by simply owning things separately from the start. In a state with no portability and a low threshold, that head start is worth real money.

Retirement accounts

This is the one almost nobody sees coming, and I have written about it separately.

For a trust named as beneficiary of an IRA or a 401(k) to get favorable payout treatment, it has to be irrevocable, or become irrevocable, at the account owner's death. Treas. Reg. § 1.401(a)(9)-4(f)(2). A joint revocable trust that the surviving spouse can still amend was not irrevocable at the first death, and it can fail on that ground alone. Every year of tax deferral the family was counting on can disappear because of a provision that looked like ordinary flexibility.

Separate trusts do not have this problem. Each one becomes irrevocable when its own grantor dies, which is what the regulation is looking for.

If retirement accounts are the largest thing you own, and for a lot of DC-area professionals they are, this should drive the decision by itself.

One of you has creditor exposure

If one spouse is a physician, a general contractor, a business owner who signs personal guarantees, or anybody else with a professional liability profile, keeping that spouse's assets in a separate trust makes the line between the two estates easier to prove years later. A joint trust holding everything invites an argument that everything is available.

Related, and easy to get wrong: both DC and Maryland recognize tenancy by the entirety, which means property a married couple owns that way is generally beyond the reach of a creditor of only one spouse. Moving that property into a revocable trust can destroy the protection unless the trust is drafted to preserve it. Maryland has a statute that keeps the immunity when tenancy by the entirety property is conveyed to a trustee, subject to conditions. Md. Code, Est. & Trusts § 14.5-511. Do not assume it happens automatically, and do not assume the same result in the District without checking the document.

Assets that came in unequally, or from somewhere else

An inheritance one of you received. A business one of you started before the marriage. Property one of you owned going in. A prenuptial or postnuptial agreement that says who owns what. Pouring all of it into a joint trust muddies a record you may want later, and separate trusts keep it clean without anybody having to remember what the original arrangement was.

A non-citizen spouse belongs in this category too. The unlimited marital deduction does not apply to a surviving spouse who is not a U.S. citizen, and the usual fix is a qualified domestic trust with its own rules and its own trustee requirements. That structure sits much more comfortably inside a separate trust plan.

What people get wrong about joint trusts

Two things come up often enough to be worth saying.

The first is basis. In community property states, a joint trust can get a full basis step-up on both halves of the community property at the first death, which is a large benefit. Neither the District of Columbia nor Maryland is a community property state, so that benefit is not available here. Advice written for California or Texas readers does not carry over, and a good deal of what turns up in a general internet search was written for exactly those readers.

The second is the elective share. People sometimes assume a revocable trust puts assets out of reach of a surviving spouse's claim. In Maryland, that has not been true since October 1, 2020. The elective share is now measured against an augmented estate that includes revocable trust property. Md. Code, Est. & Trusts §§ 3-403, 3-404. Whether your plan uses one trust or two, it needs to account for that.

How I actually decide

I ask four questions, and the answers usually settle it before anybody has looked at a document.

Is this a first marriage for both of you, with children only together? If not, separate trusts.

Is your combined net worth anywhere near $5,000,000, and do you live in DC? If so, separate trusts, because the District's exclusion cannot be ported and the only way to capture it is to have assets in the right hands ahead of time.

Are retirement accounts a large share of what you own, and do you want a trust involved in them? If so, separate trusts, or a joint trust drafted with the irrevocability requirement specifically in mind.

Does either of you carry professional or business liability? If so, separate trusts.

If all four answers point the other way, a joint trust is very likely the right call, and I would rather you fund one document properly than fund two documents halfway.

If you already have one and you are wondering

A revocable trust can be amended or restated while both of you are alive and competent, so this is a fixable decision. Restating a joint trust into two separate trusts is real work, mostly retitling, and it is a bounded project rather than an open-ended one.

The version I would not leave alone is a joint trust drafted before 2020 that names itself as beneficiary of a retirement account. The retirement rules were rewritten by the SECURE Act and rewritten again by the 2024 final regulations, and the irrevocability problem described above is easy to trip over and expensive to discover late.

Questions people actually ask

Should a married couple have one joint living trust or two separate trusts?

One joint trust works well for a first marriage with shared children, commingled assets, and a combined estate comfortably below the state estate tax threshold. Two separate trusts are better for blended families, estates near the DC or Maryland exemption, couples whose wealth sits in retirement accounts, and couples where one spouse carries liability exposure.

Does a joint trust cost less than two separate trusts?

Usually the drafting fee is similar, since the analysis is the same either way. Separate trusts add funding work, because assets have to be divided between the two trusts and retitled individually.

Can a joint revocable trust be a beneficiary of an IRA?

It can be named, but it may fail the see-through requirements. A trust has to be irrevocable, or become irrevocable, at the account owner's death. Treas. Reg. § 1.401(a)(9)-4(f)(2). A joint trust the surviving spouse can still amend was not, and the payout period can be shortened as a result.

Does the District of Columbia allow portability of its estate tax exclusion?

No. The DC exclusion is not portable between spouses, so whatever the first spouse to die does not use is lost. The exclusion starts at $4,000,000 under the statute and is adjusted annually for inflation, and the Office of Tax and Revenue published $4,873,200 for deaths in 2025. Maryland allows portability of its $5,000,000 exemption with a timely election, for a spouse who died on or after January 1, 2019.

Do we need separate trusts to save estate tax?

Not always, though in the District it often helps. Because DC does not permit portability, capturing the first spouse's exclusion generally requires funding a credit shelter trust at the first death, which requires assets to be owned by that spouse. Separate trusts make that ownership clear in advance.

What happens to a joint trust when one spouse dies?

Whatever the document says. Some joint trusts continue unchanged with the survivor in control. Others divide into a survivor's share and an irrevocable share at the first death. The difference determines whether the plan protects children from a prior marriage and whether the trust qualifies as an IRA beneficiary.

Can we change from a joint trust to separate trusts later?

Yes, while both spouses are alive and competent. The trust is restated into two documents and the assets are retitled. After one spouse has died, options narrow quickly and may disappear.

Is a joint trust a bad idea in Maryland or DC?

No. It is a common and often sensible structure in both. Neither is a community property state, though, so the basis advantages you may read about in advice written for California or Texas do not apply here.

The Law Office of Jacobie K. Whitley works with individuals and families in the District of Columbia and Maryland on estate planning, trusts, and business succession. If you have a joint trust and you are not sure it still fits, or you have been quoted two trusts and want to know why, that is a short conversation. You can book an estate planning session.

This article covers District of Columbia, Maryland, and federal law as of August 2026 and is general information, not legal or tax advice. It does not create an attorney-client relationship, and nothing here promises a particular result. Estate tax thresholds change, and the right structure depends on facts specific to you. Jacobie K. Whitley is licensed in the District of Columbia and Maryland. Please talk to an attorney about your own situation.