You have arrived at your second marriage a little bit older and (hopefully) a little bit wiser. Second marriages and blended families present their own issues when it comes to estate planning. You would like to take care of your spouse and your children, but letting them work it out after you are gone is a recipe for disaster. Once you have been through a divorce, you understand that “happily ever after” isn’t always. Fortunately, estate planning that takes into account your unique family situation can alleviate most of your concerns, allowing you to freely pursue your second chance at happily ever after.
Good communication is key. The first step is to have an honest conversation with your new spouse about your existing finances, goals for the future and how you expect your assets to be distributed. These conversations can be difficult and emotionally-charged, but they will reap innumerable rewards in the long run. If your children are adults, you may also want to include them in these discussions so that everyone knows what to expect.
If possible, I suggest consulting with an estate planning attorney prior to remarriage to assess your options. But, if you have said “I do” again, it is not too late! The most important thing is to do something. Don’t let the state determine how your assets will be distributed.
The biggest concern in second marriages is ensuring that each spouse’s share of the estate ultimately ends up with his or her desired beneficiary. That is, if each spouse has children from other relationships, those children’s inheritance is protected even if their parent is the first spouse to die. Traditional estate planning distributes an estate to the spouse and then the children. But, after the first spouse dies, the surviving spouse can easily amend the documents to disinherit whomever he or she chooses–including the deceased spouse’s children!
If one of you brings significant assets to the marriage, it may make sense to prepare a separate property trust, before you get married to ensure that those assets ultimately end up with your chosen beneficiaries. You may make your current spouse the beneficiary of the trust until their death and then your children. Or you may have your separate property distributed directly to your children.
Whether or not you have a separate property trust, you should also establish a joint trust with your spouse that has protections for the children. For example, upon the first of you to die, half of the couple’s assets are placed into an irrevocable trust for the benefit of the surviving spouse. The surviving spouse is able to live off of the income generated by that trust, but the principal is preserved for the children of the deceased spouse. This kind of trust does require some administrative time and costs, but they are well-worth the peace of mind provided.
POWER OF ATTORNEY FOR FINANCIAL AFFAIRS
A durable power of attorney gives you the opportunity to name a trusted individual to manage your financial affairs and legal decisions during your life if you are not able. Make sure that any previous powers of attorney (perhaps naming your previous spouse) are revoked. Execute an updated power of attorney naming your spouse, your children or another trusted individual as your agent.
ADVANCE HEALTH CARE DIRECTIVE
Similar to a power of attorney, a health care directive allows you to name someone you trust to make decisions about your health care when you are not capable yourself. An updated health care directive is always helpful for medical professionals in the event of an emergency. This also gives you a chance to discuss your feelings about your end-of-life care, organ donation and burial arrangements with your new spouse.
You may have a significant amount of wealth in life insurance policies and your retirement accounts. The beneficiary designations on those assets will control who they are distributed to, not your will or trust. Many people forget to change beneficiaries when they get divorced.
Think holistically about these accounts and your other estate planning. For example, you may want to provide a death benefit through a life insurance plan for your spouse, while allowing the rest of your estate to pass to your children. It is extremely important that you do not name minors on your beneficiary designations. Minors are not legally able to control assets and a guardian may have to be appointed by the court to manage the asset until the minor turns 18. Speak to your estate planning attorney about strategies to allow your children to benefit from your life insurance and 401K plan without court intervention.
PERSONAL INFORMATION AND CONTACTS
You and your new spouse may be still learning about each other, and that includes details about financial assets. Often people have smaller life insurance policies that have been owned forever, a little-used account at a credit union or an old 401(k) plan from a job left long ago. Now is the time to share that information and make changes or transfer those accounts. It will be so helpful for your grieving spouse and family to not have to play detective after your death.
Moreover, your new spouse may not know all of your family and old friends. Providing names, telephone numbers and email addresses for these people so that they can be notified if something happens to you will help connect your spouse with your past.
Every blended family is different and each presents its own set of challenges, both legal and personal, but a trusted attorney can help guide you through the process and achieve your goals.
Author Alexandra Smyser is an Associate Attorney at the Law Offices of Donald P. Schweitzer in Pasadena, Ca.