By its very nature, estate planning requires you to contemplate possibilities — and eventualities — that you probably prefer not to dwell on. At the heart of most estate plans, after all, is a plan for the distribution of estate assets after the death of the plan’s creator. If you are married, one of your primary estate planning goals will likely be to protect and provide for your spouse in the event that you are the first to go. Have you thought about what your spouse might do with the assets you leave him/her down the road though? Specifically, have you considered what might happen if your spouse remarries? The estate planning lawyers at Kulas & Crawford explain how to protect your estate in case your surviving spouse remarries.
Have You and Your Spouse Discussed the Big “What If?”
Most couples, at some point in time, broach the subject of the likelihood that one of them will die before the other. If the marriage is one of long duration, the thought of starting a new life with someone new after the loss of your spouse may seem impossible. Nevertheless, the possibility should be discussed. Some people are adamant that they want their spouse to find love again while others would consider it a betrayal of the relationship they had. Either way, the reality is that your spouse could find love again and remarry after you are gone. Because the possibility exists, you need to consider it when creating your estate plan.
Many couples create reciprocal estate plans, meaning that both individual plans call for all assets to be gifted to the surviving spouse upon death. If you have children, the agreement is that the surviving spouse will then pass down those assets to your children upon his/her death. A reciprocal estate planning approach makes sense, as long as both parties stick to the agreement. What happens though, if your spouse ends up remarrying after your death?
How Can Your Spouse Remarrying Threaten Your Assets?
Regardless of how you may feel about the possibility of your spouse remarrying, you need to consider how that marriage could impact your combined assets. Remember, if your assets all passed to your spouse at the time of your death, that means that when your spouse remarries he/she brings your combined assets into that new marriage. The new spouse now has a potential claim to those assets in the event of a divorce. Moreover, the new spouse also becomes a legal heir to your spouse’s estate once the marriage takes place. If those assets were intended to be passed down to your children upon the death of the surviving spouse, the new marriage could threaten that plan in several ways. If your surviving spouse co-mingles those assets, they become marital assets and subject to division in a divorce. If the surviving spouse lives in a state that allows a surviving spouse to take against the Will, the new husband or wife could have a claim to those assets even if your spouse honors his/her agreement and gifts them to your children in a Last Will and Testament.
A Family Wealth Trust Can Help
The good news is that careful estate planning now can protect your assets in the event of your spouse’s remarriage. A Family Wealth Trust (FWT) may be the answer. A FWT is a type of asset protection trust that can protect your assets while still providing for a spouse and/or children. Your FWT can stand alone or as a sub-trust within a larger trust. Your children are designated as the beneficiaries of the trust. Your spouse can be named as the Trustee of this trust, or you can appoint a close friend or professional Trustee. Your spouse can use or benefit from the property held in trust, but he/she does not own those assets. Ownership in the property in the Trust is reserved for your children.
Contact Estate Planning Lawyers
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding how best to protect your estate from the remarriage of a spouse after you are gone, contact the experienced Florida estate planning lawyers at Kulas & Crawford by calling (772) 398-0720 to schedule an appointment.