Providing for Your Spouse & Children in a Second Marriage
The comprehensive guide
Richard Barnes, Attorney
May 2009, 1st Edition
Create an estate plan for your whole family, including your current
spouse and children from your current and previous marriages. With Estate Planning for Blended Families, you'll get targeted
In nearly half of all stepfamilies, one spouse or the other
brings a child or children with them. But while most estate
planning books give a general overview of the process of creating a
will, trust or other estate plan, most do not have the information
that couples in a second marriage need to provide for the entirety
of their family.
Estate Planning for Blended Families is the first book
that will help you provide for your current spouse as well as
children from both your previous and current marriages. Attorney
Richard Barnes is a practicing lawyer who helps couples just like
you create estate plans that take care of the entirety
of a blended family. You'll get targeted
Identifying goals and concerns
Discussing matters with your spouse
Planning for all children involved
Estate and gift taxes in a second marriage
Choosing executors, trustees and guardians
Working with lawyers, financial planners and other
Estate Planning for Blended Families also includes sample
estate plans, current tax information for your state, and the
latest information about which federal and state laws apply to you
and your loved ones, so that you can create the right estate plan
for your whole family.
“Blended families face unique challenges when they begin to plan their estates. Richard Barnes’ straightforward exploration of many of these challenges makes it a must-read for remarried couples.” - Jon J. Gallo, Co-Author, Silver Spoon Kids: How Successful Parents Raise Responsible Children
“A much-needed book that thoroughly covers a complex and emotional topic with great sensitivity and clarity.” - Joseph H. Astrachan, Editor, Family Business Review and Executive Director of the Cox Family Enterprise Center
Richard Barnes is a practicing lawyer, author and regular speaker on business and estate planning. He is the Vice Chair/Chair-Elect of the Fiduciary Law Section of the State Bar of Georgia, a past President of the Atlanta Council of Younger Lawyers, a past President of the Valdosta Rotary Club, a contributor to South Georgia Business magazine, a member of the Valdosta Bar Association, and a member of the American Bar Association. Richard is an Adjunct Professor at Valdosta State University, teaching a course on Business Associations.
Richard is a graduate of Rhodes College and Vanderbilt University School of Law, where he was the Senior Student Writing Editor of the Vanderbilt Law Review. He served as General Counsel for the Transmission Networks Systems Division of Scientific-Atlanta, Inc. and practiced law at two Atlanta firms before joining a firm in Valdosta.
Your Estate Planning Companion
1. The View From the Mountaintop
What Is Estate Planning?
Your Path to Successful Estate Planning
Keeping It All Together
2. Identifying Your Goals and Concerns
What Are Your Goals?
What Do You Want to Avoid?
3. Balancing Your Planning for Spouses, Children, and Stepchildren
Making Your Wishes Clear
How Big Is Your Pie?
Who Gets a Slice of the Pie?
How Big Are the Slices?
Getting Down to the Nitty-Gritty: Specific Assets
Building Relationships With Children and Stepchildren
4. You and Your Spouse: Talking It Through, Working It Out
Talking About the Tough Stuff
Tips for Resolving Differences
Common Roadblocks – And How to Get Around Them
Federal Estate Tax
State Estate Taxes
The Federal Gift Tax
Gift Tax vs. Estate Tax: Why It’s Better to Give Now Than Later
The Generation-Skipping Transfer Tax
6. Tools and Techniques for Blended Families
Understanding Probate and Nonprobate Assets
Will or Trust? Get This Right and Things Start to Fall Into Place
Providing for Your Spouse but Making Sure Your Children Ultimately Get Your Stuff
Providing Cash for Loved Ones With Life Insurance
Sharing the Wealth Now: Making Gifts During Your Life
Other Tax-Saving Tools
7. Spouses of Unequal Wealth
Talk, Talk, and Keep on Talking
Should You Help Out the Stepchildren?
Good Tools for Spouses of Unequal Means
8. The May-December Romance
Providing for the Younger Spouse
Providing for the Older Spouse’s Children
Providing for Children From the Current Relationship
9. Family Property
The Family Farm
A Family Business
10. Choosing Executors and Trustees
What Do Executors and Trustees Do?
Potential Candidates for Executor or Trustee
Helping Your Executor and Trustee
11. Preparing for Disability and End-of-Life Decisions
Premature Disability: How Would You Pay the Bills?
12. Working With Lawyers
How to Find the Right Lawyer for You
You Are the Client
How Lawyers Advise Couples
How Lawyers Bill
How Much Should It Cost?
The Estate Planning Process
Pulling Together the Information You Need
How to Help Your Lawyer (and Lower Your Bill)
Other Members of the Team: Accountants and Financial Advisers
13. Keeping Your Plan Current
Where to Keep Your Important Documents
When to Update Your Plan
Appendix A: Sample Estate Planning Questionnaire
Appendix B: Sample Estate Plans
Pete and Cynthia: Young Couple of Modest Means
Randy and Andrea: Grandparents Whose House Is
Their Primary Asset
Tom and Callie: Young Couple With Wealth
Jack and Lynn: Successful Couple With Age and Wealth Differences
The View From the Mountaintop
What Is Estate Planning?
Your Path to Successful Estate Planning
Step 1 Prepare
Step 2 Discover the Tools and Techniques Available to You
Step 3 Work with Your Lawyer and Other Advisers
Step 4 Finalize Your Plan
Keeping It All Together.
Each summer my wife, our son, and I travel to Highlands, North Carolina, for a long weekend. While we’re there, we stop by the little grocery store on the edge of town and stock up on sodas and homemade cookies. With our provisions in a backpack, we head to the trailhead and take the short, steep hike up Whiteside Mountain. On a clear day, the view to the valley below is incredible—lush trees, houses large and small, every year a little more development, but still unspoiled.
As part of our ritual, we take lots of pictures and then I hoist our son on my shoulders (not quite as easy now as it used to be!) and we hike back down into town for ice cream and pizza.
Whenever I think of Whiteside Mountain, I think of the view from the top, looking down, serene, at peace.
When beginning your estate planning, you’re standing on a mountaintop of life experiences, looking down at the valley below, which represents your goals and dreams about what you’d like to have happen when you’re gone. So here you are, with a vision of what you’d like to accomplish, some of it a little murky. But how do you get there from here?
Whether you’ve been through the estate planning process before or this is your first time, whether you’re neat as a pin or searching beneath the cushions for a pen, the estate planning process is pretty much the same—an orderly path you take to achieve what you want.
But before I describe the path you’ll take, let’s look at what estate planning is.
What Is Estate Planning?
Put simply, estate planning is the process of communicating your wishes about your care and property—real estate, cash, treasured possessions, the stuff in the bottom of your closet—in a manner in which they’ll be respected should you be unable to speak for yourself. At the end of your planning (yes, there is an end in sight!), you’ll have a folder stuffed full of signed documents—typically, a will or trust, powers of attorney, and a living will or advance directive—all designed to bring about what you want to accomplish. I’ll talk in later chapters about what these documents are and the place they may have in your planning.
To be effective, your estate planning must be:
Informed. You need enough information to make intelligent decisions—to know why certain techniques are better for you than others, and the pros and cons of these techniques.
Coordinated. The documents you sign in your lawyer’s office aren’t the only ones that affect your estate planning. A host of other documents, such as beneficiary designations on life insurance and retirement plans, joint accounts, and real estate deeds are also very important. You’ll need to be aware of how these other documents affect your planning and make sure they are consistent with your overall plan.
Concluded. Let’s face it, most folks would rather do just about anything other than plan for their mortality. There’s a real tendency to put off planning as long as possible—so congratulations on beginning the process. Try not to get bogged down somewhere along the way, because failing to complete your estate planning doesn’t leave you a whole lot farther along than if you never took it up in the first place—you just have less money after paying for something you can’t use.
Your Path to Successful Estate Planning
Let’s look at the path you’ll take to get to an effective estate plan as part of a blended family. There are four primary steps along the way: Prepare, Discover, Meet, and Finalize.
Step 1. Prepare
Preparing for the process includes identifying your goals and concerns, assembling the necessary information, and talking about the issues with your spouse.
Identify your goals and concerns. Identifying your goals and concerns will guide your estate planning choices. For example, your primary goal could be to provide for your children at your death, or it could be to provide for a surviving spouse. You might be concerned about giving your children too much too soon or about your assets winding up in the hands of a former spouse. Moving from the general to the specific—from the vague (provide for loved ones) to the concrete (provide for Bob, Cindy, and Tonya, but not your ex)—lets you make choices that will ultimately achieve what you wish to accomplish. You’ll also want to review your goals and concerns from time to time to remind yourselves why you are going through the process and encourage you to stay on track.
Assemble the necessary information. Beginning your estate planning is like tackling a home repair project or a recipe: you want to make sure you have all of the materials and ingredients at hand to ensure an orderly process. Preparation can help save you time and frustration spent looking for misplaced items, and can save you expensive attorney’s time as well.
If you do a lot of cooking, you may have come across a wonderful French expression, mise en place, which is loosely translated as “everything in its place.” When you’re starting a recipe, it’s helpful to get all of your ingredients, pans, and gadgets together up front so you’re not hunting for the coriander just as the sauce is beginning to burn. Similarly, with your estate planning, it’s a whole lot easier if you’ll take the time to collect the information you’ll need at the beginning, rather than arriving at the lawyer’s office without a deed or an agreement or a retirement plan statement that you need. (Chapter 12 has a list of what to gather.)
Talk about the issues. After the both of you get a good handle on your goals and concerns and your financial picture, you and your spouse will want to sit down together and talk. You may find a lot of common ground; you may find some of your goals will differ. One spouse may wish to see family assets pass exclusively to that spouse’s children; another spouse may say, “let’s just throw everything all into one big pot and divide it among the kids.” I’ll give you suggestions on how to address and reconcile these issues.
Will Your Estate Planning Be the Eisenhower Tunnel or the Stumphouse Tunnel?
The Eisenhower Memorial Tunnel, about 60 miles west of Denver, is an engineering marvel. At over 11,000 feet elevation, it’s the highest road tunnel in the world. It is approximately 1.7 miles long and crosses the Western Continental Divide. Almost 12 million vehicles passed through the tunnel in 2007.
The Stumphouse Tunnel, on the other hand, is located outside of Walhalla, South Carolina. Originally intended to be a railroad tunnel 5,863 feet in length, tunnel construction was abandoned in 1859 with 4,363 feet completed. Its intended use frustrated by lack of completion and periodic landslides, the tunnel found a brief renaissance as a place to store and age blue cheese by Clemson University. It’s now a lovely place to visit and hike—but it’s not a working tunnel.
The point? Just having the vision to get started on a grand project isn’t enough.
Step 2. Discover the Tools and Techniques Available to You
Once you’ve discussed your goals and concerns, you’ll want to think further about how you may wish to provide for the children in your blended family. Also, you’ll want to learn more about taxes and the tools that you’ll use in your planning. I’ll describe basic estate planning devices such as wills and revocable living trusts and introduce you to more specialized techniques used in blended family estate planning. I’ll also point out techniques that work well if you and your spouse have ever lived in a community property state.
Step 3. Work with Your Lawyer and Other Advisers
Once you and your spouse have decided on a general course of action, you’ll want to select the lawyer who’s right for you. You’ll meet with the lawyer to go over your goals, concerns, and financial information. Your lawyer will have recommendations to help you achieve your goals. You also will want to make your accountant, if you have one, part of the team since he or she has an intimate knowledge of your finances, as well as any financial adviser you regularly consult. (Chapter 12 offers tips about how to select and work with attorneys and other experts, as well as what to look for when you review the documents produced by your attorney.)
Many of my married estate planning clients come to me as a couple. Some prefer to work on their own. Either way, one person generally takes the lead and is the contact person for questions, information, and scheduling meetings. If you are the leader, your responsibilities are to:
work through the book
keep your spouse informed throughout, and
set aside time for you and spouse to work on exercises together.
Why Do You Need a Lawyer?
Nolo’s philosophy is to help you do what you can for yourself and point you to a professional when necessary. In blended family estate planning, a lawyer is often necessary. Why? Because in blended families, each spouse might have different goals. Sorting through and reconciling these goals often warrants an impartial, experienced counselor to bring the parties together. Plus, although we hope and expect that everyone will get along, once one of the spouses has died, there is a potential for challenge by a disgruntled spouse, child, or stepchild. A lawyer’s prior assistance in the process can increase the likelihood that the estate plan holds up.
Step 4. Finalize Your Plan
Once you’ve met with your lawyer, you will want to carefully review any documents your lawyer prepares, reading them closely to make sure your wishes are being respected. Don’t be afraid to ask questions!
After you’ve given any changes to your lawyer and received answers to all of your questions, your lawyer will finalize the documents and invite you to the office to sign them. The signing ceremony will be very formal, with witnesses and a notary present to make sure all of the state law requirements are followed.
Once your estate planning documents have been signed, you should take time to rest and celebrate your accomplishment. Over time, you’ll want to continue to make sure that your joint checking accounts, life insurance beneficiaries, retirement plan beneficiaries, and property titles are set up in ways that are consistent with the new plan and that you make any transfers (into a trust, for example) recommended by your attorney. Should you have a significant life event (birth or adoption of a child, change in marital or financial status), you’ll want to look at your plan to make sure that it is still current and reflects your desires. Even if you don’t think there have been any big changes to your life, you should review your plan about every three to five years.
If you are in a same-sex relationship and you or your partner has adopted children or has children from a previous relationship, your issues are probably very similar to other couples in blended families. This book may be of help in sorting out what you’d like to accomplish. Issues of fairness to the children and fairness to your partner in the use and disposition of joint and separate assets will be important considerations in the preparation of your estate plan.
States differ in their recognition and treatment of same-sex relationships—some allow marriage, others civil unions or domestic partnership, and some do not recognize same-sex relationships at all. There are also varying rules as to the enforceability of agreements entered into by same-sex couples.
Federal law doesn’t recognize any kind of same-sex relationship sanctioned by a state. That can affect your estate planning in many ways—for example, you can’t leave property to your partner free of federal estate tax, as other married couples can. It’s is important to consult an attorney experienced in such matters in your state of residence.
Keeping It All Together
This book contains some exercises and worksheets that you and your spouse will want to complete when designing your estate plan. You also will collect financial information that your lawyer will need. Without a system in place, it may be tough keeping everything together.
You may want to purchase a three-ring binder, some pockets that will fit into it, and a three-hole punch so you can corral the information in a central place. It’s a good place for you to keep notes and a running list of questions to ask your lawyer, your accountant, and your financial adviser.
What Is a Blended Family?
Throughout this book, I use “blended families” to mean married couples and their children where one or both of the couple has children from a previous relationship. Individuals in second and third marriages can be in blended families, as can individuals in a first marriage if there are children from a prior relationship.