If you are married and have children from a previous marriage, or if your spouse brought children from a previous relationship to your marriage, you have special estate planning concerns. Most people want to provide for their spouse first, if they pass away, and then their kids. This is easy if all your kids are your spouse’s kids too, and vice versa. Most people in that scenario simply leave all money to the surviving spouse, with the expectation will be taken care of in a manner, regardless of who passes away first. It gets confusing quickly, however, if you have kids from different relationships. In that scenario, leaving all your money to your spouse with the expectation that he or she will keep your kids in their estate plan can backfire spectacularly. There’s nothing to prevent your spouse from changing everything, and cutting your kids out entirely, after you pas away.
To guard against this scenario, there are some things you can do so that your original intentions are carried out and that other unforeseen events do not pop up to frustrate the people to whom you wish to leave your hard-earned wealth.
Review Your Present Estate Plan
An estate plan is more than just your will or the powers of attorney that you may have executed. These include any joint accounts you have set up, life insurance policies or POD (payable on death) accounts. When some people remarry, they forget that a life insurance policy exists that names the former spouse as beneficiary or that an IRA, 401k or stocks also name the ex-spouse as beneficiary. It is vital that you review what accounts and stocks you have to ensure they are changed to reflect your present intentions and that you make the necessary changes immediately.
Also, check on your durable powers of attorney to see if you wish to change the person named, especially if it is a former spouse.
Set up a Trust
A trust is an excellent way to protect against the possibility that the surviving spouse will change your plans and cut your kids out of the picture. You and your spouse can each set up trusts that will provide for each other during your lifetimes, and then for kids after you have both passed away. You can appoint different family members to handle different responsibilities, or a third party can oversee everything.
You can always split your assets between your spouse and children. Many people, however, want to be sure that their spouse has as much he or she needs before the giving anything to the kids. That is why many people leave all assets to their surviving spouse, with the expectation that the spouse will then include all kids and step-kids in his or her estate plan. As discussed above, however, your surviving spouse will have no legal obligation to honor that wish once the money becomes theirs.
One way to deal with this is a contract to make a will. This arrangement requires each party to include certain provisions in their wills and to not change those provisions after one of the spouses passes away. This can provide assurance to you that your wishes will be enforced. Talk to Denver estate planning lawyer Dan McKenzie about whether you can draft such a contract and what is needed to ensure its enforceability.
If you want to limit your spouse’s right to claim a part of your estate after you pass, you can include waivers in a prenuptial agreement. Under current Colorado law (please check with an attorney to verify whether this is still accurate), a spouse has a right to the following:
- Right to make a claim in the decedent’s estate for family and exempt property allowance
- Unless someone else is named in the will, the right to act as personal representative
- Right to claim part of the intestate estate
- Right to claim a homestead exemption in the estate
- Right to claim an elective share of the deceased spouse’s estate
These agreements may be included in cases where your spouse has sufficient assets and you wish to leave your entire estate to your children. The prenup can also dictate which assets belong to you and which to your spouse.
Life Estate for Home
One way to ensure that your children gain title to your home is to establish a life estate for you and your spouse so that you both may reside in the home and have control over it as the life tenants. After you both die, the house automatically passes to your children.
There are drawbacks to this strategy. The IRS may consider your transfer of title to your children a gift, and require a gift tax return. It may also result in your children inheriting your house with your capital gain basis, something they could have avoided if they had inherited the property via probate. IAlso, if your children have tax or legal problems, the IRS or judgment creditor can put a lien on the home. Should a child on the title declare bankruptcy, the state could take money from the value of the life estate.
Consult Estate Planning Attorney Dan McKenzie
Estate planning for blended families can be complex and full of unintended surprises. Consult Denver estate planning lawyer Dan McKenzie, who has handled these and other complex estate planning matters for numerous satisfied clients. A three-time Super Lawyers Magazine “Rising Star,”Mr. McKenzie has been drafting and advising clients on their estate plans and other matters since 2003.