What If My Spouse Remarries After I Die?

Providing for a surviving spouse is a primary goal for anyone getting an estate plan, but most have not yet thought about whether they should limit the surviving spouse’s access to their estate in favor of preserving assets for the children.

Most of my clients’ primary concerns when taking the step to get a comprehensive estate plan include ensuring their spouse is adequately provided for, ensuring the children are provided for, and avoiding conflict among family members.  When we get to talking about goals and plans for leaving behind their property, I’m often told to give everything to the surviving spouse, and then divide everything equally between the kids.  Sounds fair.  Even when I ask my clients if remarriage of the spouse is a concern, most are adamant that the spouse should be able to do whatever he or she wants with the property left behind by the deceased spouse. 

What really gets people thinking is when we start discussing the issue of someone taking advantage of the surviving spouse.  While my younger clients are confident the surviving spouse will have the mental fortitude and awareness to recognize potential predators, with my older clients, this part of the conversation is much lengthier.  Perhaps they have become more aware of the ever-increasing need for companionship and assistance as their physical condition begins to decline.  What if, considering that need, someone offers to fill it in a flattering way?  What if my spouse is taken in and enticed to spend away our legacy on this new helper?  How can I ensure that some portion of our legacy is preserved for our children instead of being spent on a potential predator?  How do I do this while allowing my spouse sufficient access to provide for his or her needs and wants?

These are tough questions that often yield the most in-depth part of the planning conversation.  Spouses who have been married for decades sometimes disagree on whether this is a legitimate concern.  Most couples haven’t thought about it by the time they come in my door.  And while we discuss several options, many need additional time to let this new consideration sink in before making a decision of how to handle it in their estate plan.

Here are a few ways that clients can address this issue in their estate plan:

1. Direct Gifts to Children. The most extreme method would be to give the estate directly to the children following your death, rather than giving it to or through your surviving spouse. While this ensures the children an inheritance, it likely isn’t in line with your goal to provide for your spouse unless your spouse has sufficient separate assets of his or her own.

2. All Income to Spouse for Life – Principal Reserved for Children. An easy solution to provide something for the spouse while preserving the assets for the children is to give your spouse the income from the assets while he or she is alive, but preserve the principal for the children. This again makes sense for wealthy spouses who have adequate separate property, or for when the deceased spouse’s assets are large enough and in a state that they yield adequate income.  But if both spouses have small estates, and if the deceased spouse’s estate consists of property that doesn’t yield much income (family farmland, for example), then the surviving spouse may need more than just the income to live comfortably.

3. Income and Principal to Spouse According to Ascertainable Standard. Some clients choose to give the surviving spouse access to income and principal, as long as they show some need for the principal. For instance, some limit the spouse’s right to principal only if the spouse needs the support for basic living expenses, or for medical care.  Some broaden it to provide for the spouse’s comfortable living by justifying the distribution for the spouse’s “health, education, maintenance or support.”  In any case, if the surviving spouse is held to a standard, with the remainder held for the children, then the children have a right to step in and enforce that standard if they see distributions being abused.  Typically the surviving spouse is serving as the trustee of the marital trust, so the children will have to approach the living parent directly or reach out to a court to make a change.  Alternatively, if a trust protector was named, the children may turn to this person and request that a new trustee be named.

4. Prenuptial Agreement. On a different plane, some choose to limit the surviving spouse’s ability to access principal unless adequate protections against predators are put in place through a prenuptial agreement. This often allows the surviving spouse unlimited access to the decedent’s estate unless the surviving spouse remarries.  Then the survivor’s access is restricted unless a prenuptial agreement is properly executed between the surviving spouse and the new spouse, which agreement must protect the children’s inheritance.  The shortcomings of this approach involve the possibility that a predator may never marry the surviving spouse, who may be inclined to spend money on the predator regardless of marital status.

While these are only a few solutions for the remarriage/predator concern, most choose some variant of the above options to address their concerns.  If you and your spouse haven’t discussed or appropriately planned for providing for each other while preserving your children’s inheritance, talk to one of our estate planning attorneys in our Sioux City, Sioux Falls, or Omaha offices to build this protection into your comprehensive plan.