Issue 17.15
Serving clients as an estate planning attorney for almost 20 years, I have helped many widows and widowers with marriages later in life. For the most part, these have been good experiences for the couple, but sometimes a bit challenging for the families.
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 new 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 a surviving spouse during his or her life. However, the deceased spouse often wants the estate to ultimately be distributed to his or her children upon the surviving spouse’s death.
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 protected the financial legacy of the children, while at the same time taking care of his or her new companion.
Jeffery J. McKenna is a local attorney serving clients in Utah, Nevada and Arizona. He is a shareholder at the law firm of Barney, McKenna, and Olmstead with offices in Mesquite and St. George. He is a founding member of the Southern Utah Estate Planning Council. If you have topics you would like addressed in this column, you can contact him at 628-1711 or jmckenna@barney-mckenna.com.