In first marriages, the couple generally has the same goals when it comes to their estate planning: take care of the surviving spouse for as long as he or she lives, then whatever is left will go to the children. They may own many of their assets jointly and, at the death of the first spouse, more than likely everything will go to the surviving spouse just as they had planned.
In contrast, second marriages, which occur after a divorce or death of the previous spouse, are different. There may be his children, her children and sometimes their children. Each spouse probably has assets they brought into this marriage, and they will want those to go to their own children after they die. At the same time, they will probably want to make sure the surviving spouse will have enough to live on.
More than likely, estate planning methods relied upon in the first marriage will not work now. For example, let’s say the husband adds the new wife’s name on the title of his home and they own it as joint tenants with right of survivorship. If he dies first, his share will immediately transfer to his wife, who now has complete ownership of his home. She can do whatever she wants with it now, regardless of what his will or trust says. She can leave it to her own children and completely disinherit his.
There are similar problems with beneficiary designations. Many people name their spouse, as beneficiary of their life insurance, IRAs and other tax-deferred plans to provide for his or her spouse, should he or she die first. Nevertheless, this can be a problem with second marriages because the spouse-beneficiary can name anyone he/she wants as new beneficiaries or to inherit the proceeds, bypassing the owner’s children. Promises may be made now to include them, but promises can be broken after one spouse is gone.
Other Considerations:
If each spouse has considerable assets, it may make sense to create a separate trust for each spouse. If there will be a pre- or post-nuptial agreement, it should be reviewed by an estate planning attorney (before signing).
If one spouse has considerably fewer assets than the other does, it is possible to provide for this spouse until death or remarriage, then have the remaining assets distributed to the children of the “wealthier” spouse. This is often accomplished through a life estate or QTIP trust.
If the new spouse is much younger, the children of the older spouse may be concerned that the new spouse is only after the money. These feelings may subside as the marriage lengthens. However, if the younger spouse is closer in age to the children, they may be wondering if they will ever receive their inheritance. Consider distributing some of their inheritance upon their parent’s death, then the rest at the surviving spouse’s death or remarriage.
Naming a trust as beneficiary for life insurance policies and tax-deferred plans is often a good choice for second marriages. This will allow the owner-spouse to keep control over how and to whom the proceeds are distributed. The surviving spouse can receive lifetime income, yet the owner-spouse can keep control (through the trust) over the rest of the proceeds. Keeping the proceeds in a trust will also protect them from irresponsible spending, creditors, predators, divorce, remarriage and even estate taxes, if done properly.
Be sure to include planning for disability and long-term care. If one spouse becomes ill and Medicaid assistance is needed, the combined assets of the couple will be considered “available assets” to pay for the care of the ill spouse. Long-term care insurance may be needed to protect the assets of one or both spouses.
It is a good idea for the couple to discuss their individual estate planning goals together. If they are similar, then the task may be somewhat easy. However, if they are considerably different, separate attorneys may be needed.
If you are in a second marriage situation, you may have already considered some of these issues. Regardless, it is important to consider these issues with the advice of an estate planning attorney conversant in such situations.
If you are interested in ensuring that your family is cared for after you have passed away, please call our office at 415-625-0773 to schedule your free estate planning consultation with San Francisco’s premiere estate planning attorney, Matthew J. Tuller.
