Estate planning can be a lengthy and complex endeavor even for the traditional nuclear family, involving a variety of strategies and essential legal documents such as trusts, guardianships, and power of attorney.
The process can become even more complex after a divorce and second marriage in Florida, particularly when there are children from the previous marriage. Estate planning after a second marriage presents a number of issues that could result in conflict and confusion if not properly addressed and handled accordingly.
One of the biggest concerns arises when there are children from the initial marriage. In many circumstances, you want to make provisions for the surviving spouse, but leave your estate to the children from your first marriage—not your surviving spouse’s children.
However, Florida law has legislation in place designed to protect your surviving spouse, which could potentially override the terms of your estate plan. The provisions could make it possible for your surviving spouse to leave it to his or her children, rather than your own. In order to protect your children’s inheritance, you must address these provisions when planning for your estate. Below, we’ve listed several effective strategies to take when estate planning after a second marriage. These are designed to ensure your assets go to your intended beneficiaries.
Setting up a trust. One of the most effective solutions to this issue is to set up a trust. You can do this in your last will and testament, or by setting up a living trust during your lifetime. With a trust, you’re allowed greater control over how your assets will be handled after your death. Assets within a trust can only be accessed by a spouse during his or her lifetime, and any remaining assets will be passed on to your children after his or her death.
However, with a trust, there remains possibility for misconduct. For example, your spouse could withdraw all assets from your trust and leave them to his or her children. However, you can prevent misconduct with careful planning, such as naming a reliable trustee to manage the trust or making provisions that prevent a spouse from accessing the trust until his or her own resources have been exhausted.
Written agreements. You may be able to address issues that arise in second marriage estate planning by drafting a contract with your spouse. The contract could agree to make all children beneficiaries of both your estates, regardless of who passes away first.
However, contracts are typically not as secure as trusts, as there are many possible ways to manipulate these contracts. For instance, a surviving spouse could shift assets to his or her children while they are still living, reducing the amount your children will receive from his or her estate.
Of course, these are only a glimpse at a couple of the many strategies you can use when estate planning to ensure your wishes and desires are honored. If you are planning your estate after a second marriage, contact an experienced Florida estate planning attorney. An attorney can help you determine the strategies that are best suited to your unique estate, and guide you through legal procedures and the drafting of necessary documents. With the help of a knowledgeable attorney, you can make sure your estate goes to your intended beneficiaries, and ensure the ones you love are provided for after your death.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.