Drafting wills for the remarried spouse.

• Author: Kiziah, Trent S.

Throw away your forms; your client has remarried and needs an updated will. Attorneys draft wills for their clients relying on their forms and they should. Forms provide consistency and often avoid unnecessary oversights which may occur if every will was made from scratch. But forms need to be substantially modified to meet the issues that arise in second marriages.

All too often, the substantive and boilerplate language found in forms is premised on the assumptions that both spouses consider the assets as "theirs," that each spouse's primary testamentary desire is providing for the surviving spouse, and on the belief that the survivor will effectuate the intent of the predeceasing spouse because both spouses have identical objects of their bounty, best described as the traditional marriage in which both spouses have only been married once and all their children are of that marriage.

The traditional marriage is becoming the exception rather than the rule. Attorneys' forms have not changed with the societal changes in the marriage relationship. Forms that are suitable for the traditional marriage are inappropriate for the second marriage, especially when children exist from a prior marriage.

Choosing the Appropriate Estate Plan

The skilled estate planner often is, required to guide and educate his or her client. Many clients have not given sufficient thought to their estate plan, especially the remarried client. Often the remarried client retains the concept of the traditional marriage assuming harmony will exist between their spouse and the children. The skilled estate planner will discuss with the client the likelihood that the client's children will not see their step-parent as their parent. Often, the children will view their parent's death as the event which should result in their receipt of the inheritance.

Trusts in which the second spouse has at least an income interest for life (a "marital trust") postpone vesting of the children's inheritance. A marital trust in a second marriage gives rise to pressures that are not often present in the traditional marriage. Children who would endorse a principal disbursement or a heavily weighted bond portfolio if their surviving parent were the income beneficiary, will view matters differently if a step-parent is the income beneficiary.

The marital trust is especially difficult when the step-parent is younger than the children's real parent. Occasionally, the step-parent is the same age or near the same age as the decedent's children. In such situations, postponing the children's inheritance until after the step-parent's death disinherits the children or, at the very least, postpones the inheritance until the children are well into retirement.

Fewer problems will arise if the second spouse is devised a certain sum and/or certain property with the residue of the estate passing to the children. This type of arrangement will separate the decedent's assets between the second spouse and the decedent's children. The strain associated with a long-term marital trust will be avoided. If there is concern about the second spouse's standard of living, use of life insurance payable to the second spouse should be considered. The drawback of this plan is the imposition of estate taxes on the decedent's death.

Typically, estate planners and their clients attempt to eliminate transfer taxes and to the extent they cannot be eliminated, attempt to postpone the taxes. An estate planner and the client will be working under the same premises in a second marriage. Such a plan, however, will require the postponement of the child's inheritance until the second spouse's death. Careful consideration must be given to whether this type of plan lets the transfer tax override reason. Tax deferral may actually result in increasing the taxes by shifting the wealth of the first spouse into a higher estate tax bracket on...