Elder Law Estate Planning Issues for Women

Children From Prior Marriages

With the increase in second marriages, many women have children from previous marriages. How will those children fare should a wife die first? This dynamic may be complicated by the fact that there are children from the second marriage as well as the first. Here, we consider making partial gifts to the children of the first marriage, who are generally older, on the wife’s death. The balance of the assets may be kept in trust for the surviving husband, providing for him during his lifetime and, on his death, paying out to the wife’s children from the second marriage. Alternatively, wife’s entire estate may be held in trust and pay out to all of her children in equal shares after the husband dies.

In the second marriage context, what about the husband’s children from a prior marriage? If the wife is going to be financially dependent on some or all of his assets after his death, she may want to avoid the situation when one or more of the husband’s children are in charge of the money after he dies. Here, the pitfalls are many. They may not wish to distribute principal to her, feeling that the funds are coming out of their inheritance. She may find out that they do not care for her personally, even though this was not apparent when their father was alive. They may disapprove of her subsequent remarriage. We have recommended to many women clients that they choose the lawyer to act as co-trustee with her after a husband’s death. This way, the conflict of interest that the husband’s children have is eliminated and she may handle her personal and financial business privately with her own lawyer. Second marriage planning is particularly important for women.