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Estate Planning For Second Marriages – Thoughtfulness Required

With people living much longer than in the past, the frequency of remarriages is increasing, even later. This latter phenomenon raises a host of issues for estate planning in elder law. On the other hand, we also increasingly see the blended family with “his, her and their” children, creating another set of potential pitfalls.

Most of these estate planning issues can be resolved with the clients’ forethought and compassionate advice from their estate planning attorney.

Here are some of the key issues and potential solutions for second wedding planning.

1. The duration of the second (or third) marriage as well as the relative financial situation of the parties. Recently, a client came to see us whose husband has the onset of Alzheimer’s. Her IRA named her children as beneficiaries many years ago. The couple have now been married for thirty-five years and the wife would be left without her husband’s IRA. Hope the husband has the ability to understand the situation and make a change. One option: the husband can leave his IRA to his wife on the condition that she designate her children as beneficiaries upon his death.

2. In our experience, you have to think long and hard about what the children of the first marriage will receive if their parent is the first of the couple to die. Looking at the issue from the perspective of heirs, we can often bequeath part of the estate to them, or designate them as beneficiaries of an insurance policy, so that they feel loved and cared for by their relative and not relegated to a lower position. This is especially important if the parent married a much younger spouse. Needless to say, it will also greatly affect their future relationship with the surviving in-law. Carelessness is that one area that has led to a lifetime of pain and anguish for many children of a remarried parent.

3. The use of trusts is often an essential tool when the surviving spouse needs the majority of the combined assets to survive. The question here is how to ensure that the children of the deceased spouse will receive their fair share upon the death of the surviving spouse. Generally, we establish one trust if the estate is not subject to estate tax, or two trusts if necessary to reduce or eliminate estate tax, and make both spouses co-trustees of the trusts. The trusts provide for an equal distribution between his family and his family after the second death. What stops the surviving spouse from plundering the trust and giving it all to their own children? Generally, we recommend a professional co-trustee to serve with the surviving spouse, to prevent this from happening.

4. The estate planner should consider any prenuptial agreements as well as any obligations to children arising from a divorce judgment. These may need to be changed after a number of years to reflect the current situation which may have changed significantly. For example, after many years, one of the spouses will often wish to give the other lifetime rights in the matrimonial home, if he is the survivor, which is expressly prohibited in the marriage contract drawn up many years before. .

5. Long-term care obligations have proven daunting for many couples later in life. Even a prenuptial agreement that the spouses’ property is separate and they have no financial obligation to each other is not binding on Medicaid. Medicaid considers the combined assets of the married couple to be available for the care of the ill spouse, regardless of whose name they are. Therefore, the need, amount, and availability of long-term care insurance is often a consideration in second marriages.

6. For more affluent couples, one spouse may wish to care for their less affluent spouse for life, but then pass unused funds back to their biological family. Here, a QTIP (Qualified Terminable Interest in Property) trust can be set up for the surviving spouse, which will (a) provide income for life, (b) often delay, reduce, or eliminate estate taxes, and (c ) will protect the inheritance for the children of the deceased spouse.

As you can see, with a little thought on your part and the help of an experienced elder law estate planning attorney, often gleaned from hundreds of cases, second-married couples have the ability to ” do the right thing” for everyone involved.

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