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How do you protect both your children and your current spouse when doing estate planning after a divorce?

By: Joseph R. Burcke, Esq.

The unfortunate fact is that marriage is as much an economic relationship as a romantic one. Marriage creates complex considerations for the determination of what each spouse (and their children) are entitled to receive in the event of divorce, death or disability (those deadly three “D’s”). Particularly for those who have been through the divorce process once, their concepts of what constitutes their “Separate Property” and how the court determines what is to be set aside as separate and what is to be divided as marital, are usually sadly mistaken. In the context of death, “conventional wisdom” as to what happens is almost always mistaken. This is because “separate” titling of assets means nothing to a probate court. Spousal rights accrue in a surviving spouse in the property of the parties regardless of separate title.

And, of course, unless discussed, the probability that you and your intended have the same notion as to what is fair, in the event of divorce or either’s death, is probably non-existent. Thus, while many think it is untoward to discuss economics when in love, that is precisely the time it is most important to do so.

As clients age, their concern for leaving an economic legacy for the children and grandchildren often outstrips their concern for the legacy left to a new surviving spouse. From the point of view of the economically less viable spouse, security in old age far outstrips concern for adult children one barely knows.

A skilled estate planning attorney can facilitate a calm, considered discussion as to what each party’s expectations are upon the occurrence of any number of “family disasters” that might occur after their marriage entering a marriage. When there appears to be differences of opinion as to what is “fair” that attorney can help both sides look at the issues from the other’s point of view and suggest strategies for “bridging the gap” that exists between them. Most importantly a skilled estate planning attorney can ensure that the agreement between the parties will be enforceable, not only by creating appropriate estate planning documents. These documents will create the legal structure that will prevent a need to resort to the courthouse to windup a family’s financial affairs (in the event of disability or death) and make a subsequent divorce a summary proceeding instead of a lengthy acrimonious process.

As a prelude to planning, it is a good idea to discuss the possible economic ramifications of a marriage with one’s children. Far better to learn your children’s economic expectations before the marriage, so that you can take their feelings into account in coming to your own view of what is “fair” than to just assume that they will agree with your views and acquiesce to your decisions. While it is most certainly your right to do as you wish with your income and assets, it is better to put our adult children’s minds at ease concerning such issues than to blithely ignore their views and traipse happily down the aisle in ignorance. Fear of disinheritance as a result of remarriage is an all too often cause of family feuds after a second marriage occurs and can often cause additional stress in your new relationship, stress that could have been easily avoided by listening to your children; taking their views into account as you determine what you think is fair and taking those views into consideration as you develop an economic agreement between yourself and soon to be spouse.

By having a loving discussion with your soon to be souse as to his or her expectations as to the economics of your future relationship, coming to an agreement as to how each spouse will be treated economically in the event of disability or death of each can go a long way to actually promoting the long term emotional health of a marital relationship.

By creating a legally enforceable agreement that protects mutually agreed expectations will provide both partners peace of mind that comes from knowing that they are loved and economically cared for. Adult children are more likely to support a parent’s relationship decisions when they know that the relationship will not result in their disinheritance.

Finally, by “bolting down the details” through enforceable estate planning documentation, you can put all family members minds to rest. Family peace of mind can only be enhanced when all members know not only what is to happen but how it will come about, as well. And those details to be “bolted” can include strategems for increasing or maintaining family wealth by probate avoidance, estate tax avoidance or multi generational deferral or, in an increasing number of cases, protecting the family as a whole from the economic devastation of a lengthy nursing home stay.

One final thought.

If you have remarried, it is not too late!

Post Nuptial agreements can establish a legally binding agreement between spouses as to the rights of each in divorce or death or disability; provide each with economic security and preserve a legacy for descendants.

Joe Burcke has been helping people plan their financial affairs for more than 25 years. He may be reached at 314-865-7495. Visit his website at www.burckelaw.net.