"I'm concerned that if I died first, and I just left all my assets to John, that he could get remarried or simply decide for whatever reason not to leave my boys anything upon his death." Sarah's heartfelt concern is shared by many individuals who are in a second marriage, where children can be his, hers, and theirs. Taxes are not the issue; protecting one's legacy so that at least some portion of it stays "on your side" is the goal. How can this be achieved while still benefiting the second spouse?
The goal is generally to benefit the surviving spouse while guaranteeing that upon that spouse's death, whatever is left will pass in accordance with the wishes of the first spouse to die. There are a number of ways to do this.
Contract to Make a Will. First, it is possible for both spouses to have wills that leave everything to the surviving spouse but then divide between both sides of the family that cannot be later changed, based on a written contract signed by both spouses. The risk is that the surviving spouse may remarry, get sued, or get divorced. In any of those situations, the will may continue to be unchanged, but the assets may becomed depleted by the time the spouse dies.
Testamentary Trust for the Spouse. A better alternative is to insert a trust within your will, for the surviving spouse (this can also be done within a living trust). The surviving spouse can be the sole beneficiary of this trust, but there will be limits on the distributions, so that the surviving spouse cannot withdraw all the trust assets, defeating the plan. The spouse would generally be entitled to all the trust income plus discretionary distributions of principal for maintenance and support or at least medical emergencies.
Having someone other than the spouse as the trustee---or at least as a co-trustee with the spouse---adds further protection. Upon the spouse's death, the trust divides among your children or however you want it to pass. The main advantages of this approach are as follows:
- your spouse has no ability to alter your intended distribution of assets following your spouse's death
- if your spouse remarries your assets are protected against claims of a divorcing new spouse
- if your spouse remarries the new spouse will not be able to demand a portion of your assets as an "elective share" (see below) upon your spouse's later death
- creditors of your spouse cannot touch the trust assets during your spouse's lifetime or after death
Elective Share. Any of the above solutions must take into consideration the "elective share" statute of your state. That law guarantees a certain percentage of your estate must pass to your surviving spouse, no matter what your will says. That percentage varies from state to state, but is generally between 1/3 and 1/2, and some states pro rate the percentage depending on how long you've been married. A pre-nuptial or post-nuptial agreement can override this statute, as can a properly worded contract to make a will.
Attorney K. Gabriel Heiser has devoted his legal practice to Medicaid planning, elder law, and estate planning for the last 23 years.
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