Blended families can face complex estate planning challenges. Issues can arise between spouses or between stepchildren and step-parents. Typically, individuals in blended families want to provide for their spouse as well as their children from their previous marriage. In some cases, they also want to provide for the children from their spouse’s previous marriage.
Several trends related to divorce have increased the number of blended families:
* More than 50% of American marriages end in divorce.
* Approximately 60% of American remarriages end in divorce.
* Approximately 43% of American marriages are remarriages for at least one party.
* There are approximately 1.16 million new divorces in the U.S. each year.
* In the U.S., 54% of divorced women remarry within five years.
* The potential for children to be disinherited.
* Delays in the children’s receipt of inheritance until after the death of their parent’s spouse.
* The need to protect assets from former spouses.
* Disputes over division of authority or responsibility.
WHAT ESTATE PLANNING STRATEGIES CAN HELP? Depending on a family’s situation and needs, an experienced lawyer can help select and execute one of the following strategies.
(1) Prenuptial and Post-Nuptial Agreements. These agreements should address:
* The parties’ rights and responsibilities during their marriage with regard to living arrangements, division of obligation to pay expenses, and obligation to purchase and maintain long-term care insurance.
* The parties’ rights and obligations if they divorce.
* The rights and obligations of the surviving spouse in the estate of the deceased spouse.
(2) Family Trusts. These trusts are designed to benefit the surviving spouse and children. When preparing a Family Trust, the following should be considered:
* Distributions. The trustee may be permitted to make distributions to the surviving spouse and designated children.
* Unitrust distributions. A spouse may be given an annual unitrust distribution equal to a percentage of the trust. For example, the spouse might receive 4% of the total annual return on assets held in the trust or 4% of the total trust assets as calculated on an annual basis.
* Trustee selection. A disinterested trustee may be appointed to help avoid conflicts of interest and strained family relationships while permitting distributions for “any appropriate purpose.”
* Death of spouse. The trust may stipulate that, upon your death, the remainder of the trust will be distributed to your children from a previous marriage or to children from both marriages.
* No contest clause. Including a “no contest” provision in the trust minimizes the risk that the trust will be challenged.
(3) Dynasty Trusts. These trusts are designed to benefit your child and their descendants. With the goal of keeping money in the family, the trust protects assets from the child’s creditors, including divorcing spouses, while maintaining maximum control for the child. The trust may include the following provisions:
* That your child will be the trustee unless they are involved in a divorce action or a lawsuit.
* That your child, acting as trustee, can distribute principal to or for the benefit of themselves or to their descendants.
* That there will be a disinterested trustee who can distribute principal for any appropriate purpose.
* That the trustee will have discretion to distribute income to or for the benefit of the child.
* That the trust terminates at your child’s death and the remaining principal is paid to your child’s descendants, not to your son- or daughter-in-law.
* A "spendthrift" clause is a provision that expressly says your child has no right to terminate the trust and protects the assets in the trust from creditors.
(4) Irrevocable Life Insurance Trusts (ILITs). An ILIT lets you provide for your children with life insurance and use your remaining estate to provide for your spouse. The trustee of the ILIT purchases a life insurance policy on your life and you pay the premiums. ILITs offer two major advantages. They prevent children from being disinherited because the trust names them as beneficiaries of the life insurance policy. They also ensure that children will receive inheritances promptly because the policy will pay the trust immediately upon your death. There also are some variations on this strategy in which you can:
* Purchase your own life insurance policy and name your children as beneficiaries. The estate tax consequences of this technique must be considered.
* Have your children from a previous marriage own the policy while you pay the premiums, utilizing your Annual Exclusion gifts.
(4) FLPs and FLLCs. A Family Limited Partnership (FLP) is an ideal tool for a family that owns real estate. The real estate is transferred to the partnership, which is composed of parents and children. A Family Limited Liability Company (LLC), comprised of family members, is similar to an FLP. Both arrangements can be used to protect family assets from the claims of spouses and former spouses. FLPs and FLLCs also can protect family assets from the claims of your children’s spouses or former spouses.
(5) Life Estates. Often, in a second marriage, one spouse moves into the home of the other. The home is not always retitled jointly – nor should it be. The individual who owns the home often wants the spouse to have the right to live there for their lifetime. This can be accomplished by giving the surviving spouse a life estate in the home. Individuals who choose this strategy should attach certain conditions to the life estate, such as an obligation on the part of the surviving spouse to pay the home’s taxes, insurance, and maintenance expenses. Consideration should be given to requiring an automatic termination of the life estate if the surviving spouse moves out or abandons the property for a certain period of time. Also, provisions should be made regarding whether the property can be rented or sold and, if so, who is entitled to the rent or proceeds of the sale.
(6) Contracts to make a Will. When appropriate, a contract to make a Will offers a simple estate-planning solution. Often, spouses want their Wills to stipulate that everything will be left to the surviving spouse, with remaining assets to be divided on some basis between children from both families upon the death of the second spouse. But, at the death of the first spouse, the Will of the surviving spouse typically becomes non-enforceable since it can be changed to disinherit the children of the first spouse. It is possible for the parties to enter into a contract to make a Will, which essentially prohibits the surviving spouse from changing their Will. The disadvantage of this strategy is that the surviving spouse may have valid reason for wishing to change the Will, completely unrelated to disinheriting the children of the deceased spouse or delaying their inheritance.
(7) Qualified Terminable Interest Property Trusts (QTIPs). With a QTIP, the Will or trust of the spouse who dies first gives the surviving spouse the right to income from assets held in the trust. This income interest has the effect of deferring the taxes due at the death of the first spouse. It also is possible to draft a QTIP to include the right for the trustee to make distributions of principal exclusively to the surviving spouse. The surviving spouse has no right to direct payments from the QTIP. Upon their death, the trust typically distributes assets to the children of the first spouse. In most cases, a QTIP trust is drafted as part of an overall estate plan, either leaving a portion of the assets outright to the children or leaving those assets to a credit shelter trust for the benefit of the surviving spouse and the children from one or both marriages.
(8) Disclaimer Trusts. When assets are left outright to a surviving spouse, he or she may be given the right to “disclaim” them into a Disclaimer Trust. This very popular type of trust should not be used if there is concern that the surviving spouse may disinherit the children of the deceased spouse.
If you're part of a blended family and have questions about preparing an estate plan that addresses your family's unique situation, give us a call at 253.858.5434 to set up an appointment today. We represent clients throughout Washington and Idaho and are available to meet in person (with appropriate social distancing protocols in place), by phone, or via video conference.
