To protect your children’s inheritance and to make sure the people you love ultimately inherit what is left, there are two primary tools we use: 1. trust law to protect the property and to control and direct the remainder interest, and 2. an agreement not to alter the plan. The chief focus of this article is on the agreement not to alter the plan.
Let us assume John and Cindy are married and have two children, Michael and Janice.
John and Cindy realize it is possible that, upon the death of one spouse, the survivor would get re-married. Given this possibility, when they are getting their planning put together, it is advisable for them to sign an agreement that indicates neither will alter their estate plan without each other’s consent, and that if the survivor is to get re-married, then the new spouse will waive their spousal rights under a valid prenuptial agreement.
What does this do? It creates equitable rights for Michael and Janice and ultimately protects their remainder interest. If we do this, and we also utilize trust law to protect assets during the surviving spouse’s life, and to direct where the remainder will go (to Michael and Janice), then we will have taken substantial steps that will ensure the family assets will not be lost to a new spouse, will not be lost to a lawsuit, will not be lost to unnecessary taxes.
If we further direct assets to the children “in trust” for their benefit, where they are in control as trustee of their own trust, then we can make sure the assets they inherit from you will not be commingled with their spouse (your in-law) and will stay in your family protected from almost all creditors claims.
Now, that is good planning.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate and elder law planning attorney. mwinnesq.com