Summary: Fewer families are in the mold of “Ozzie and Harriet” or Ward and June Cleaver. For families where the partners have children from previous relationships, it is important to ensure that the plan fully protects each spouse. These plans might include co-trusteeships, multiple trusts or other techniques to protect each spouse’s family. A properly constructed plan can minimize the risks that your children will be frozen out and receive nothing from you simply because you died before your spouse did.
While federal statistics show that the oft-repeated factoid about half of all divorces ending in divorce is no longer true, a significant number of married couples with children either have (or will) choose to end their marriages. Of those, many will find new partners whom they will marry or with whom they will cohabitate. For families in these situations, it is very important to engage in careful estate planning to make sure that what happens matches what is supposed to happen.
As an example, take a hypothetical family where each spouse has been married once before, each spouse has children from that previous marriage and each partner wants an estate plan that will support the surviving spouse during his/her lifetime and then benefit all of the children. For this family, having each spouse create will that leaves everything to the surviving spouse, and then to all the children (and step-children,) may be risky. If you are the first to die, there is generally nothing that legally bars your spouse from changing his/her will to leave everything to his/her children, meaning that your children would not only get nothing from their step-parent, they would inherit nothing from you, either; rather, all of your assets would go to your step-children.
An estate plan with a single living trust where you and your spouse are the co-trustees may present some of the same risks. If you die before your spouse, then your spouse, as the sole surviving trustee of the trust, would be completely free, in many cases, to alter the plan to cut out your children.
There are multiple techniques to minimize this risk. One option is to set up the trusteeship of your trust such that neither spouse ever assumes sole trusteeship. You could construct your trust such that, if you die first, one of your children assumes co-trusteeship alongside your spouse (and create a mirror provision to protect your spouse’s family.). Another method for addressing this potential risk is by creating two separate living trusts, one for each of you and your spouse. In this plan, when you die, your trust becomes irrevocable and cannot be changed.
The best way to ensure that your estate plan operates exactly as you desire is to communicate fully all of your goals and each of your concerns with your estate planning attorney. Your estate planning attorney has a wealth of legal tools at his/her disposal to make sure that the plan you and your spouse put into place best protects each of you. However, you should be aware that, with some families, the needs of each spouse may create what’s called a legal “conflict of interest.” If that happens, it means that two attorneys will need to be involved — one to represent your interests and one for your spouse.