Legal Tip 234: How do you feel about your spouse remarrying after you death?

When preparing a will for a client I had to ask the question ‘what if your wife remarried?’

He started yelling “I will kill the *******, who is he! He doesn’t even exist yet, but I hate him” – jokingly of course. Then I said ‘what if your wife died first and you entered a new relationship” – oh that is different he said


But it is a serious question. Spouses often remarry or enter into new relationships and this will affect the family assets that you leave behind – their owns assets plus assets they inherited from you.


Example

Homer and Marge are happily married and have a few assets in each name. Homer dies and leaves everything to Marge. Nothing to the children and nothing on trust.

A short time after the funeral Marge enters into a dalliance with neighbour and widower Ned – who is renting and has no assets. Pretty soon Ned is staying over 4 nights per week and then moves in.

Marge then dies of a heart attack during a vigorous love making session.

Her will leaves everything to her kids. But Ned has grown accustomed to living in style on the money Homer left Marge. Ned also likes the bed Homer purchased and wears Homer’s dressing gown in the morning. He also feeds Homer’s dog!

Ned makes a family provision claim. He is an eligible person as he is now a ‘spouse’ of Marge – or was on her death. His new girlfriend has moved into the house too.


Ned gets awarded 30% of Marge’s estate and they live happily ever after.


If Homer had considered this in his will he could have taken evasive action to prevent or reduce the financial effect of a new spouse on the family.

 

Bloodline testamentary trust, independent co trustee?

 

no

 

Quote..
If Homer had considered this in his will he could have taken evasive action to prevent or reduce the financial effect of a new spouse on the family.

Not trying to get any free advice Terry,but the WifexBoss have only ever talked about this once..

Myself i don't think i would ever want anyone else just stay free..

But how could you set it up,not that i would want to ..

 

I trust that my wife's judgement doesn't become terrible (or maybe it is already terrible? She married me!) after she dies. So she can do what she wants once I'm dead.
Personally, I'd also see something like this similar to a prenuptial. Why marry someone in the first place if you don't really trust them?

 

I think Homer trusted Marge and Marge didn't realise she was doing anything wrong. She didn't seek out a spouse, she sort of fell into the relationship with Ned - his charming moustache was hard to resist. She didn't even realise he was a 'defacto'.

 

One very simple way was to leave some or all assets to the children. Perhaps giving Marge a right to reside in the house until her death.

 

Think Bob and Blanch

 

yuck!

 

Thanks Terry,i already have it set-up in some ways with some of the long term held equities with their names on the hin's,but that was when i was working 7 days a week just in case i never came home..

 

I probably need to review my will. We don't have any kids to leave anything too, but I would like to see some people get priority over others. I haven't seen my bother in law in 15 years and his daughter for 20 years. As it stands, there's (very unlikely but possible) circumstances where his daughter could inherit 20% of our estate. She probably doesn't even know my name.

@Terry_w Ned Flanders would never marry Marge. Moe would be there long before Ned could say, "Diddly".

 

What happens if mum lives for another 20 years and then wants to move into a more manageable apartment, but the kids want the big house, or even worse go through a divorce and the assets get split up.

 

Hopefully this would have been covered upfront. I have never actually set up a will like this.

It is possible to have a portable life interest, so the property could be sold and the proceeds used to buy a new property with mum having a life interest in this property.

A preferrable option might be for a testamentary trust for each of the children and the surviving spouse.

 

To answer the question posed in the subject of this thread, my answer would be:-

If he is a better lover than me (probably unlikely ).

 

You married?
I tried this suggestion with the wife (runs her own business with 15 staff) a few years back... "Darl, i want to rewrite my will so when i die, you only get a third, and i will give the 2 kids a third each". No. Did not go down well at all, didn't happen. She gets 100%. If neighbour Ned gets 30%, so be it.
I think the expression is - trying to rule from the grave.

 

Someone can always get screwed (excuse the vulgarity). Your kids could get suckered into trusting the assets they inherited from you with a shark and lose it all before it even benefited them. Your spouse could get suckered into coupling up with a con-man who saw the high life from a mile away. Thats why I like the family trust that pays income but never gives the jewels away. Thats the structure I think i’ll be going for.

 

Who has or can get control of the Trust?

 

If you were really worried you could have a capital protected trust so the income could be passed on but not the capital - until a distant future event such as your grandchildren reaching 25 years of age.

 

while homer is still alive he should appoint a trustee for the trust .
I suggest someone smart and knows a bit about the assets to run it ...how about Ned to run it

 

I brought all the money to the marriage and I hate the thought of my kid getting nothing if I die and he remarries and then dies. I need a new will!