The standard estate plan for two spouses is for each spouse to leave everything to the surviving spouse and then for the surviving spouse to provide for any children and other beneficiaries in their estate plan.
However, this plan may not work for individuals in second marriages when they have children from a previous marriage. Under the standard, leave everything to the surviving spouse, estate plan, the surviving spouse is free to reduce, or eliminate entirely, the share of the estate going to their deceased spouse’s children after the passing of their previous spouse. While it may be unpleasant to think about, a second spouse’s feelings can be less attached to the children of the previous marriage. This may be especially acute if there is any sort of falling out, or drifting apart, between the surviving second spouse and the children from the previous marriage after the death of the spouse.
Another factor which may cause tension is if the second spouse is closer in age to the children from the first marriage than the first spouse. Even if everything goes according to plan, the children from the first marriage may not see their inheritance until well after the point in their lives when it could do the most good.
There are ways, however, to provide for both a second spouse and for children from a previous marriage. Simply directing a portion of your estate in a will to your children may seem like an ideal solution, but this method could create otherwise avoidable tax liabilities and other expenses. Instead, the better solution is likely to create a trust that can provide for both your spouse and your children while minimizing taxes and other expenses. There are different types of trusts that can fit different situations depending on the size of the estate and the number of the beneficiaries involved.
The decision of exactly what trust structure is needed can be a complex one and should not be taken without the guidance of an elder law attorney. An elder law attorney can also guide you how to deal with items that transfer directly upon death, such as retirement benefits and insurance policies, in a way that provides for all of your beneficiaries.
Please call Martha C. Brown & Associates at (314) 962-0186 to make an estate plan that fairly provides for all your planned beneficiaries.