When it comes to estate planning, good intentions are unlikely to produce good results.
I most often see this in the case of second marriages…even those in which everybody in both families are getting along great…for now.
I am not an attorney and you should consult one in the state in which you live. But here are the scenarios that I often see…
1. No will. My understanding of Louisiana law is that without a will and upon your death, half of your community property assets would pass to your surviving spouse, with the other half passing to your own children, whether born or adopted. However, a surviving spouse has use of the assets meant for your children, including the right to spend all the cash, while she is alive and unmarried. She can do anything she wants with the half that she inherits directly from you.
2. With a simple will. Well, if your children are adults and they’re not disabled, you can leave all of your assets directly to your surviving spouse in a will. He or she would then have the ownership of 100% of those assets. And when she dies, the disposition of those assets would depend on what her will said. If she doesn’t have a will, all of her assets will go to her children. Period.
In this instance, your children could get left out in the cold. This makes for some pretty unhappy surviving children and some pretty tense Thanksgiving meals.
Second marriages are wonderful, and I understand the desire to take care of the woman or the man that you now love and the desire to leave a legacy for your children. But you need to understand these are competing desires and may conflict with one another. That doesn’t mean that you can’t accomplish both, but it just means that you have to do so by being very intentional.
It won’t just happen on its own. So, here are some things to consider…
1. Provide for your surviving spouse’s income after you are gone. If you make sure that your surviving spouse has an income sufficient to maintain the lifestyle that you both enjoy now, well there is less chance that she or he will want or need to spend assets that you intend to go to your children.
2. Provide for her care after you are gone. After income, expenses for long-term care in older age are the biggest out-of-pocket drains on assets. So, providing for her or his long-term care in old age will save everyone heartache and possible financial ruin.
3. Direct where you want each dollar to go before you’re gone. It’s likely that you’ll each need to have not only a will but trusts within your will. A trust is simply a financial arrangement in which you give the trustee the right and the responsibility to hold title over property for the benefit of another (in this case, your surviving spouse and/or your surviving children).
Good intentions are really really nice. But they’re no substitute for a carefully crafted and well-funded estate plan.