Second marriages are fairly commonplace. Estate planning issues that arise from multiple marriages can be highly complex and confusing. Merging two families into one presents unique legal and financial challenges that can cause significant conflict and distress unless effective estate planning has been put into place early on. Here are a few of the most common issues that blended families should keep in mind when it comes to estate planning.
Estate Planning Documents If you get remarried and have children from a previous marriage, you need to think about how you want to balance providing for your new spouse and ensuring the children from your previous marriage are taken care of in the event you become incapacitated or when you die.
Will-based plans are generally not recommended for blended families as these type of plans don’t guarantee your children will receive their inheritance if the new spouse would inherit everything first in the Will. If you have children, Illinois law guarantees at least one-third of your probate estate goes to your surviving spouse no matter what your Will says. A Trust based plan with an additional Prenuptial Agreement is generally recommended for blended families that want to keep assets separate for each spouse’s respective children to inherit. Trusts also allow the flexibility to provide the surviving spouse with assets and income for the rest of their lives while ensuring the remainder of those assets will go to your children upon the surviving spouse’s death. Having the right estate planning documents in place AND making sure assets are titled properly is crucial when designing estate plans for blended families.
Inheritance Timing If you have children for whom you want to leave an inheritance, you should think about how and when you want those assets passed on. For example, what if you die prematurely or your spouse is significantly younger than you? Do you want your kids to wait until the new spouse dies to claim their inheritance, or do you want them to receive it immediately following your death? Establishing a trust can protect assets for each spouse’s children and stipulate when the kids receive their inheritance. You may want to provide your children with some of their inheritance, such as proceeds from a life insurance policy, upon your death and then release the rest at some point in the future. If your kids are very young, you may decide to leave that decision up to your spouse or a third-party successor trustee.
A common scenario for blended families is for one spouse to set up a living trust that names themselves as the trustee during his or her lifetime, with the surviving spouse named as successor trustee once they die. This is done to ensure the surviving spouse will be provided for for life and the children will receive the remaining assets once the new spouse passes.
But the new spouse and your children may have conflicting interests, especially if the spouse is older. For example, the new spouse may choose to invest the assets conservatively, ensuring he or she has enough money to live comfortably for a few more decades. However, the children—particularly if they are younger—might be better off having the assets placed into higher-risk investments, which can offer better returns in the long run, but leave less income for the surviving spouse. In this case, it can be best to name a neutral third-party as successor trustee, so both the children and surviving spouse’s interests can be balanced fairly.
That said, one option is to at least leave something to your children from a prior marriage immediately upon your death (in trust if your children are minors). By doing so, you can mitigate potential conflicts between your children and surviving spouse.
Incapacitation Beyond finances, the issues of power of attorney and health-care directives must also be discussed. If one spouse becomes incapacitated, you must decide who you would want to make legal and medical decisions for you. If the children are young, it may be best to leave those decisions up to your surviving spouse. However, if your children are older, you may want them included in the discussion of how your health-care decisions will be made.
Comprehensive and effective estate planning is especially important for blended families. At the Ritchie Law Office, Ltd. we have worked with many blended families. Each blended family dynamic is unique and different -- requiring different and unique approaches when designing an estate plan. We strive to ensure that both you and your new spouse can effectively document your wishes to avoid any confusion or conflict over how the assets will be passed on in the event of one spouse’s death or disability. If you have a blended family, or are in the process of merging two families into one, contact the Ritchie Law Office, Ltd so we can discuss all of your estate planning options.
This article is a service of Attorney Chad A. Ritchie and the Ritchie Law Office, Ltd.
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