For many married couples, when one spouse dies, all marital property passes to the surviving spouse. This means that the surviving spouse has sole responsibility for deciding what happens to that property when he or she dies. In the traditional family, this is rarely a concern. But, more and more often, the so-called traditional family is the exception, not the rule.
Remarriage can create unique estate planning concerns, especially if you want to provide for both your current spouse and your children from a previous marriage. In many cases, remarriage creates a situation of “yours, mine, and ours.” Your spouse may not have developed a close relationship with the children from your previous marriage, and may feel very little responsibility toward them. If this describes your family situation, you need to take positive steps now to ensure that your estate is ultimately distributed according to your wishes.
Why the logical solution may not be the best solution
A logical plan would be to leave all your property to a trust, allowing your spouse to live in your home rent free and live on the income from trust assets for the rest of his or her life. Then, when he or she dies, the property would pass to your children. This plan, however, could result in conflict between your surviving spouse and your children because:
* Your children’s investment objectives may not match your spouse’s
* Your children may watch every penny your spouse spends
* Your children may essentially be waiting for your spouse to die
Fortunately, there are other solutions that sever the money connection that is the source of the conflict described above.
Use life insurance
Life insurance can be a particularly effective method of providing for children from a previous marriage, and you have several options. First, you can make your children beneficiaries of a life insurance policy that you own. Second, your children can purchase insurance policies on your life, and you can gift funds to pay the premiums. Third, you can establish an irrevocable trust to hold life insurance purchased for their benefit. This third option is especially appropriate if you have minor children. In any case, your children are the beneficiaries of the life insurance policy, and you are guaranteed they will receive a certain amount of money when you die.
Name your children as beneficiaries of your retirement plan
Making your children the beneficiaries of your IRA or employer retirement plan is another way to provide for their needs after your death. Be aware, however, that you may need your spouse’s written consent if you wish to name anyone other than your spouse as the beneficiary of certain types of retirement plans.
Create a postnuptial agreement
Postnuptial agreements aren’t right for everyone, but they can help eliminate conflicts between your spouse and your children from a previous marriage. The agreement is a written contract between you and your spouse that states how property will be owned and distributed during the marriage, in the event of divorce, and at death.
Make your children joint owners
Giving your children joint ownership of property during your life will ensure that they receive that property upon your death. However, there are risks associated with this strategy. As joint owners, your children may have unlimited access to the property, meaning they would have the right to sell the property and use the proceeds for their own benefit. Also, the jointly owned property could be in jeopardy from your children’s creditors if your children run into financial difficulties, or they get divorced.
Leave your surviving spouse a lump sum
Consider leaving your surviving spouse a lump sum and dividing the remainder of your property among your children. Or conversely, leave a lump sum to your children and the remainder to your spouse. While this seems like a simple approach, there are instances when it can be very effective, especially if you have a relatively small estate.
It is important to note that there are income tax as well as estate and gift tax considerations associated with many of the options mentioned. See an experienced estate planning attorney for more guidance.
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