Recently the Wall Street Journal published an article concerning a terminally ill patient wanting to protect her son from accidental disinheritance.

That article can be found here:

http://www.marketwatch.com/story/im-terminally-ill-and-my-husband-says-he-will-disinherit-my-son-2016-05-05.

In the article’s context, the husband may not be willing to amend their estate plan to protect the son.  But here is what the husband and wife should have done before this problem arose. Every now and then, a son or daughter will come to my office and complain that after mom died, dad got remarried and gave all his estate to his new spouse.  Thus his kids (and grandkids) get nothing. Both children and grandchildren have effectively been disinherited!  And this is not uncommon

When they do their estate plan, they should consider including in their will or living trust, a provision containing a Marital or Family Trust to protect against accidental disinheritance of their own children or grandchildren. This is MUST planning for parents who have children from a prior marriage, and planning that should be considered even where parents have children from the same marriage.   The Marital Trust or Family Trust helps to protect your kids from later disinheritance.

Here is how the Marital or Family Trust works: Before death, the spouses include the Marital or Family Trust provision in their will or living trust, naming their children as beneficiaries.   That trust becomes irrevocable at the death of the first spouse and the beneficiaries of the Marital Trust cannot be changed.   At that time, the deceased spouse’s separate property and 1/2 of the community property will go into the irrevocable trust (the Marital or Family Trust).  While the surviving spouse is  commonly the sole beneficiary of that Trust, the children are the ultimate beneficiaries after the surviving spouse dies.  Then when the surviving spouse dies, what is left in the Marital Trust goes to the kids named while the spouses were alive.

Of course, the surviving spouse is always free to do whatever with his or her own property, including naming other beneficiaries.   Thus while this is not a perfect, guaranteed solution to avoiding the disinheritance of the kids and grandkids, it can work pretty well to protect the deceased spouse’s property for her or his kids or grandchildren.

Also, because use of the Marital or Family Trust involves two probates using a will system, one at the death of the first spouse and a second at the death of the survivor, this planning is ideal for using a Living Trust, which if done properly, may avoid probate altogether.  A Living Trust may amount to a time and cost savings for the Estate.

This kind of planning can be complicated and there is more to it than this post.   It must be done BEFORE one of the spouse’s dies.  .

My commentary and solutions discussed in this article and with the Marketwatch article constitute legal information, not legal advice.   Possible solutions discussed may or may not apply to your situation and vary from state to state, and  may not be available in the state where you reside.   If you are a Colorado resident, please feel free to call me for a free consultation at 303-457-9500.  Alternatively, be sure to discuss these issues with a competent estate planning attorney before taking any action.

James Morgan, Esq., CFP®