Estate planning is the preparing of legal documents to carry out your testamentary intent. Estate planning does not just take into account the high net worth individual who is primarily concerned about estate taxes, but rather planning for everyone’s testamentary intent. Testamentary intent is what you want to happen when you die. Notwithstanding, the general definition estate planning can include sophisticated gifting options to reduce one’s taxable estate and avoid or diminish federal and state estate taxes.
I have had a conversation twice in the same amount of weeks with people in my life about estate planning disasters waiting to happen due to a second marriage. Neither situation was formed from an initial ill will but both will end very bad and probably not how the testator wanted.
Two Examples of How a Second Marriage is Wrecking a Family’s Testamentary Intent
The first example is probably pretty common in terms of second marriages from a generation ago. Husband and Wife are married they have 3 children. Wife passes away approximately 40 years ago. Husband remarries a women who has children of her own. At this point you should stop humming the Brady Bunch theme. Husband and Wife2 stay married for 37 years. Wills are drafted and beneficiary statuses set up so that everything would effectively be left to the surviving spouse and then ALL the children equally. Husband died a few years back, and Wife2’s children just called Wife1’s children to let them know that Wife2 has decided to change her Will cutting out the children from the first marriage.
The second example is probably a little more uncommon. Husband and Wife have 2 children and then get divorced. Husband and Son1 start a business (75% owner / 25% Owner) – Son1 is the only one still involved in the business. Husband gets remarried to someone 20 years his Junior. Husband and Wife2 have a son together and at this point are married 20+ years; everyone is still alive and loves each other. Like above, and like most people with simple wills, all is left to the surviving spouse. So what is going to happen? Husband is going to pass away and Son1 is going to be working for his stepmom who doesn’t live in the State. Then Wife2 is going to pass away and and then Son1 will be effectively working for his siblings.
Neither situation is a good one, but at least in the second example things haven’t taken a turn for the worse yet.
If You are in a Second Marriage Your Last Will and Testament Needs to be Prepared by a Competent Attorney with Estate Planning Experience
The examples above are not uncommon and in the first example has already led to a resentment and ill feelings. Your testamentary intent should be the most important thing when creating an estate plan, and competent counsel can help you get there.