The best way to ensure that one’s assets are available for a surviving spouse but ultimately distributed to one’s children from a prior marriage is through the use of a trust. The trust can be created within a will (this is called a testamentary trust) or it can be created within a living trust (this is a trust created while one is alive).
Significantly, the trust maker would set forth the terms of the trust according to his or her wishes, and would select the trustee (or trustees) to manage the trust. Upon the death of the trust maker, the trustee would then manage the trust assets subject to those specified wishes of the trust maker.
For couples in a second marriage, it is often important to sign a marital agreement that states each spouse can dispose of his or her estate as desired. If such a document is not signed, a surviving spouse could legally attempt to “override” the estate plan of the deceased spouse.
Proper estate planning in these circumstances can be a great blessing. It can relieve significant concerns of adult children when a parent remarries later in life, and it can bring peace of mind to the parent, knowing that he or she has succeeded in protecting the financial legacy of the children.
Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney, McKenna, and Olmstead with offices in Mesquite and St. George. He is a founding member of the Southern Utah Estate Planning Council. He can be reached at 346-1615. |