Engaged couples aren’t likely to find “update the estate plan” on many prewedding checklists, but it’s an important to-do — especially if the upcoming marriage isn’t your first, or if you have kids from a prior relationship.
Many Americans have made a second or third trip down the aisle. In 2013, 40 percent of marriages were a remarriage for one or both partners, according to a Pew Research Center report.
It’s even more common to have lackluster estate planning. This summer, a survey from planning site USLegalWills.com estimated that 63 percent of Americans don’t have a will, and 9 percent have one that’s outdated. (The survey polled 2,012 adults and has a margin of error of plus or minus 1.4 percentage points.)
That combination of remarriage and out-of-date documents can be problematic for a new spouse and your kids. “In today’s environment, clients shouldn’t be as afraid of taxes as they are a parent’s new spouse,” attorney John Scroggin, a partner with Scroggin & Company in Roswell, Georgia, told advisors last month at the Financial Planning Association’s annual conference in Baltimore.
Here’s what to consider to ensure everyone’s interests are protected:
Maintain your will. Don’t have one? Get one. Without a will, assets pass according to state intestacy laws — which might not be how you would allocate them. Your new spouse might get the lion’s share, for example, or your stepkids could be cut out entirely.
Already have a will? Make sure it’s updated to reflect changes in your personal situation and finances.
Update your beneficiaries. Assets including qualified retirement plans and life insurance pass to the beneficiary listed on the account or policy, regardless of what’s written in your will, said Jeff Fosselman, senior wealth advisor at Relative Value Partners in Northbrook, Illinois. Fail to update the account, and your ex-spouse — rather than your new spouse, or your kids — could get the proceeds from that life insurance policy.
“That can obviously be a pretty uncomfortable situation,” he said.
Revise your power of attorney and health care directives. More documents to update, if you don’t want an ex-spouse as your agent. Already switched? “Make sure the power of attorney lists who they want as guardian,” said Scroggin. Otherwise, he said, a new spouse or other relative may be able to successfully petition a court for guardianship even if he or she is not the listed agent on the power of attorney.
Watch titling. Another case where your will won’t matter: Assets titled as joint tenancy with rights of survivorship, tenancy by the entirety or community property with rights of survivorship pass automatically to the surviving owner. Review existing assets to ensure ties with an ex-spouse are severed, Fosselman said.
If you want certain accounts or property to go to someone other than your spouse, title those accordingly, he said — or keep them separate as you merge finances.
Use prenups, postnups and waivers. Such agreements can often be worded to limit the rights automatically afforded to spouses, such as the right to take an elective share in your estate even if they are not mentioned in the will.
Account for personal property. Tangible personal property often ends up with the new spouse. If you want to make sure your family heirlooms or other items of sentimental value go to a specific person, specify that in your will, Scroggin said. But he warned that even with a mention, it can be hard for heirs to prove which property you intended to pass on.
Consider a trust. So-called bypass trusts are becoming more popular among clients who worry that if they die first, their surviving spouse will remarry, said Scroggin. Such trusts are set up so that the surviving spouse can benefit, but that the assets ultimately pass on to the children.
“It’s all about protecting from a second, third or fourth spouse and the divorce issues that can come from that,” he said.
If you would like to discuss setting up your estate plan with an experienced attorney at Simmons & Schiavo, LLP, call (781) 397-1700 or visit our contact us webpage.