HOW DO YOU PROVIDE FOR CHILDREN FROM A PREVIOUS RELATIONSHIP IF YOU REMARRY? Or

WHAT ESTATE PLANNING ISSUES TO CONSIDER IF YOU REMARRY

Second marriages are becoming more and more common. Estate planning is crucial with blended families. Most problems and heartaches can be resolved with advance planning and open and honest communication.

In Washington, there is a strong presumption that assets acquired during marriage are community property. Separate property is usually defined as assets acquired prior to marriage that are not commingled with community property, personal injury damages, and gifts and inheritances.

What are some options to consider if you remarry?

1. Prenuptial Agreement. A good prenuptial agreement can clearly identify which are your expenses, your new spouse’s expenses and joint expenses. Similarly, a prenuptial agreement can clearly outline what happens to each of your assets, your new spouse’s assets and your joint marital assets in the event of divorce or death of one of the parties. Each party should be represented by his or her independent attorney.
2. Non-Probate Assets. Non-probate assets, such as insurance policies and retirement accounts, pass outside of any will. Children from a previous marriage can be designated as beneficiaries of insurance policies or IRA/401K accounts. Please note that contributions to the retirement account with earnings during marriage can be considered community property.
3. Revocable Living Trust. Separate assets can also be transferred to a revocable living trust with children as the beneficiaries upon death. See “Pros and Cons of a Revocable Living Trust.”
4. Comprehensive Will with No Contest Provision and Martial Trust.
• You can also draft a comprehensive will that identifies children, stepchildren, and your spouse, and provides for each party separately.
• No Contest Clause. The will can include a “No Contest Clause.” A No Contest Clause bars any beneficiary from receiving any interest given to him or her under the will if the beneficiary contests the will. In Washington, No Contest Clauses are valid and enforceable, but such a clause is not enforceable where the contest is brought in good faith and with probable cause. If a beneficiary brings an action or defends one on the advice of counsel, after fully and fairly disclosing all material facts, he or she will be deemed to have acted in good faith and for probable cause.
• Marital Trust. The will can direct the assets into a marital trust. The trust income will go to the surviving spouse until his or her death. The trustee may invade the trust principal only under certain circumstances, such as the surviving spouse having a critical need for additional money. After the surviving spouse dies, the trust assets pass to beneficiaries named by the first spouse to die, usually children from the first marriage.