Ask the Attorney
QUESTION: My wife and I had a trust done for us years ago. She has since passed away and I am now remarried. This is the second marriage for my new wife and I. We both have children from our previous marriages. I want to add her to my trust, is that a good idea?
ANSWER: Yes and no. Second marriages are trickier when it comes to estate planning. Here’s why: In a normal revocable trust for a husband and wife (first marriage) when one spouse dies the trust just continues on. The surviving spouse can still make changes to the trust such as who the trustee is, where the assets go upon death, etc. This is fine in a first marriage with children. However when it is a second marriage, that is a different story. For instance, let’s say that you and your new wife want everything to be split among all of your children and her children evenly. Then you pass away and your wife remarries. Your wife decides that she wants everything to go to her children and her new husband’s children. Because she has the authority to change the trust, she can make that change. Now your children are cut out completely. Your children will not receive anything from your estate.
What you want is a new trust (or restate your old one) with protections built in so that the surviving spouse cannot make changes to certain parts of the trust. Maybe you want 50% to go to your children immediately when you die; or maybe you want 50% to held in trust for your grandchildren; or maybe you want to make sure that your son is the trustee of your grandchildren’s trust. With proper estate planning, you can control what happens to your assets when you die.
I would suggest you and your new spouse contact an experienced estate planning attorney to talk about possible scenarios. I am sure she wants to protect some of her assets for her children as well.
Michael B. Walling is an Elder Law & Estate Planning attorney with an advanced Master of Laws degree. He manages the Elder Law Center and law firm of Michael B. Walling, PLC. He has offices in Battle Creek and Portage, Michigan. Mr. Walling is also a Part-Time Professor at Western Michigan University.
This column is intended for general information purposes only and should not be considered as legal advice to any particular person.
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