Issue 26.16
Having been an estate planning attorney for almost twenty-one years, I have worked with many clients wanting to get married later in life. With proper planning, the experience can be wonderful!
However, it is critical that if you or someone you know is thinking about marriage later in life, that they take proper steps to protect them and their family.
Often, older couples have to cope with adult children who cannot understand why mom or dad wants to remarry. By updating one’s estate plan, many concerns related to the marriage can be minimized.
In second marriages later in life, there is often a desire to allow all or part of the estate of the first spouse to die to be available for the surviving spouse during his or her life. Upon the surviving spouse’s death, the estate can then be distributed to children or family member of the first spouse to die.
The best way to ensure that one’s assets are available for a surviving spouse but ultimately distributed to one’s children from a prior marriage is through the use of a trust. The trust can be created within a will (this is called a testamentary trust) or it can be created within a living trust (this is a trust created while one is alive).
Significantly, the trust maker would set forth the terms of the trust according to his or her wishes, and would select the trustee (or trustees) to manage the trust. Upon the death of the trust maker, the trustee would then manage the trust assets subject to those specified wishes of the trust maker.
For couples in a second marriage, it is often important to sign a marital agreement that states each spouse can dispose of his or her estate as desired. If such a document is not signed, a surviving spouse could legally attempt to “override” the estate plan of the deceased spouse.
Proper estate planning in these circumstances can be a great blessing. It can relieve significant concerns of adult children when a parent remarries later in life, and it can bring peace of mind to the parent, knowing that he or she has succeeded in protecting the financial legacy of the children.
Jeffery J. McKenna is a local attorney serving clients in Utah, Arizona and Nevada. He is a shareholder at the law firm of Barney, McKenna, and Olmstead with offices in St. George and Mesquite. He is a past President of the Southern Utah Estate Planning Council. If you have questions you would like addressed in these articles, you can contact him at 435 628-1711 or jmckenna@barney-mckenna.com.