Winstead Law


An ongoing discussion of current issues in the law

Second Marriage? Time to Make a Will

For most couples with children together, the process of deciding how to leave your estate after death is relatively straightforward: they create ‘reciprocal will’ that leave their estate to the other spouse, or to their children if their spouse predeceased them.  This works well, since ultimately the first spouse to die can rest easy knowing that their children are ultimately going to inherit. 

But what happens in the relatively common situation where one or both spouses have children from previous relationships or marriages?  You all may get along fabulously now, or perhaps you don’t.  But in either event, you may want to ensure (1) that your surviving spouse is taken care of during their lifetime, but that (2) the surviving spouse cannot disinherit your children in favor of their own.  You could both have Wills drafted wherein you both name all the children from both marriages as your devisees, but the second-to-die spouse could always change their will to disinherit the first-to-die spouse’s children.  What to do?

Fortunately, a competent estate planning attorney can provide you with the solution, which is a trust.  In the context of a will, the trust is called a “testamentary trust,” and the surviving spouse would be provided for during the remainder of their lifetime, with the rest of the estate directed to the remainder beneficiaries named by you.  This solution, however, relies upon both spouses having assets that are separate, rather than joint.  Any jointly titled assets (bank accounts, real estate, etc.) would pass to the surviving spouse without regard to the will.

To tackle this situation, we often use trusts that are revocable by the couple while they are both alive, but become irrevocable (i.e. unchangeable) after the first spouse dies.  Rather than having assets titled jointly, they can then be in the name of the trust, and we can provide for the maintenance and care of the surviving spouse, while ensuring that the children of both spouses receive what the parties had originally intended.

Some couples take the view that even addressing the “what if” question of disinheriting the other spouse’s children suggests a lack of trust.  But rather than showing a lack of trust, it’s simply a recognition that no one knows what the future holds, especially what happens after they are gone.  A good estate planning attorney can help the couple navigate this hurdle and ensure that everyone rests comfortably in the knowledge that they have provided for their loved ones.

Martin Winstead