When a married couple comes to my office about estate planning, it is usually discovered and discussed whether or not they are in a second marriage situation with step-children. That is the biggest point of contention in the arena of estate planning. For married couples who are considering marital trusts, the first item of information that is helpful to me is whether they want me to represent them both.
In that case, I essentially must take the truth serum, as it relates to their rights upon first death of either spouse and the rights that the law affords them.
If each spouse wants their own attorney or wants to maintain individual confidentiality as it relates to each other, then it is best that I only represent one of the spouses. That is definitely the first consideration. The next idea would be whether or not there is a prenuptial or post-nuptial agreement because that will determine if any of these matters have been agreed upon before the marriage or before the estate planning was done. That would also be a reason to have separate attorneys.
The next issue that would be helpful to know is how accounts and assets are held. Is the primary residence held in just the husband’s name or is it held jointly? Who are the beneficiaries? Is it the surviving spouse or is it the surviving spouse split with the children in equal shares? For other investment accounts outside of retirement accounts, how are they held? Are they held jointly or in the name of only one spouse? Usually, when the financials are separated, that tends to lead to estate planning desires about assets not going 100% to the surviving spouse but rather some sort of split upon the death of the first spouse. Ultimately, the couple needs to discuss the fair question of what happens to all the money when they die.
Most spouses want the surviving spouse to get 100% of the assets and trust the surviving spouse to leave the estate reasonably and with reasonable considerations. The big dynamic is understanding the issues that are associated with blended families and speaking candidly about them. If the couple has not spoken candidly with each other about their desires and wishes, then the initial consultation will come as a shock. Once both spouses understand and acknowledge that there can be an issue, they need to look at their income and think about their assets and their children. Hopefully, the spouses are moderately close on their wishes.
If the spouses are moderately close, then meeting with an attorney can get them to a final decision. If the spouses are not close and their assets are already separated, the spouses may be better off seeking their own attorneys to work together and finalize things. As long as everyone is being honest with their situations, it makes the initial foundational phases more likely to lead to a successful estate plan.
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Author Bio
Kellen Bryant, Esq.
Founder
Florida Bar Board Certified Elder Law Attorney, Kellen Bryant focuses his law practice on advising and helping caregivers with a particular focus on asset protection and preservation from long-term care costs, creditors, and predators. Kellen Bryant is AV Preeminent® Rated, meaning his attorney peers rated him at the highest level of professional excellence. Kellen Bryant was nominated and selected as a Super Lawyer, Rising Star: 2022.
