In today’s day and age, it is a fact of life that second marriages are becoming ever more common. Specifically, the average divorce rate is approximately 50%. In addition, it is becoming more and more common that the surviving spouse who was widowed will remarry later in life. Due to these two aspects of life, estate planning for those who are in a second marriage situation are becoming more common and ever more important.
For instance, most families set up their estate plan where they will leave everything to their spouse at their death, and then when the surviving spouse dies, everything is left in equal shares to their children. However, when there is a second marriage later in life, this somewhat complicates the issue from an estate planning context.
For example, let’s say that John and Jane were married for 15 years and had 3 children together. John passes away due to a heart attack, and he left everything that he owned to Jane. Now, at the time of John’s death, Jane also had an estate plan leaving everything that she owned to her children in equal shares in the event that her husband predeceases her. However, about 5 years after John’s death, Jane remarries and marries Tim. In addition, this was Tim’s second marriage and he has 4 children from a prior marriage.
However, Tim predeceased Jane, and left everything he owned at his death to Jane. However, 10 years after Tim died, Jane passed away and left everything she owned at her death to her three children. However, these children were Jane’s three children from her marriage with John. Therefore, in this example, Tim’s four children receive nothing. Now, you may be asking yourself how this is possible. Well, Tim left everything he owned at his death to his second wife, Jane, and then Jane left everything to her children from her marriage with John. In this scenario, Tim’s four children would not inherit anything when Jane died.
Because of these scenarios, it is very important to engage in very thoughtful and detailed estate planning and family legacy planning. One possible solution in the example above, is with a revocable living trust that provides distribution, in detail, to your current husband and your four children from your prior marriage. This would provide the certainty of knowing that your children will be provided for when you are gone. In addition, as part of this estate planning strategy, your second husband would establish a revocable living trust providing for the same possible outcome so that his four children would be provided for in the event of his death.
However, another possible solution is to establish a Qualified Terminable Interest Property Trust, or QTIP for short. A QTIP trust operates by having the assets that you hold provide income to your spouse for the duration of her life until her death or until she remarries, and immediately upon her death or remarriage, the assets would pass to the children from the first marriage.
Now, how would this work in the example above? Well, in the example above let’s say that Tim’s estate planning concern was that he wanted to provide for his four children from his prior marriage. Therefore, Tim established a QTIP trust which he funded with all of his assets during his lifetime. The QTIP trust provided that all of his assets would provide income to his wife during his lifetime. However, upon Jane’s death or remarriage, all of the assets would them immediately pass to the designated beneficiaries, which were his four children in equal shares.
Therefore, by Tim setting up this QTIP trust, all of his assets did not pass to Jane at his death, and later passed to Jane’s three children at her death. Instead, these assets where held in the QTIP trust after Tim’s death and provided income to Jane during her lifetime. However, when Jane later died, all of the assets in the QTIP trust were immediately transferred to Tim’s four children, and his children would not be disinherited.
However, in such a scenario, it would also be beneficial for Jane to setup the same type of QTIP trust so that her three children from her marriage with John would not be disinherited if she were to pass away before Tim does.