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Divorce and remarriage causes many estate plan complications. This article describes asset problems that some remarried couples encounter and suggests ways to avoid or reduce the hardships of those problems.
A remarried person’s spouse and children may differ about who should receive the person’s assets when he or she dies. One solution is for the couple to decide the estate plan outcome that each person wants and make a estate plan that accomplishes the same outcome will result regardless of which spouse dies first. The couple can then soften the effects of that decision on their families by explaining to their adult children what will happen and why they made those choices. Although no one enjoys tension and stress in the family, it is may be better to have that kind of difficult conversation when a couple is younger than for a surviving spouse to have to break the news to stepchildren after their parent has died.
Another problem in second marriages happens sometimes when one spouse owns real estate and the other spouse does not own the real estate. If the real estate owner dies first, the real estate ownership will pass through the deceased spouse’s estate, which may cause the surviving spouse and the deceased real estate owner’s children to share real estate ownership. Also, if the real estate owner has mortgaged the real estate to a bank, the bank will not speak with the surviving spouse upon the death of the real estate owner, even if the real estate owner has transferred partial ownership to the other spouse. The couple can avoid this problem by causing both to be real estate owners and mortgage loan borrowers.
Good reasons may lead only one person to own the real estate, but that may cause trouble for the other spouse if he or she is the surviving spouse. When a couple lives together and shares mortgage payments and other real estate costs, it makes more sense for the couple to share ownership and ownership burdens. Shared ownership and ownership burdens can be equal or whatever makes sense for the couple.
Remarried couples should consider decision-making issues carefully. Some couples can make business decisions for each other reliably, but a spouse can undermine the other spouse’s estate plan with a power of attorney. Also, if tension exists within the couple’s families, it is important for a power of attorney to eliminate situations where conflict and distrust arise.
Health decisions can be even tougher than business decisions. The authority to provide or withhold life support for a dying person can be an emotionally volatile matter. Each person should decide the roles of the spouse and other family members in health care decisions and then to communicate those roles to everyone involved. Ideally, if everyone understands who will be making decisions and how those decisions will be made, the shared information will eliminate surprises and reduce the chances of a health decision authority crisis.
All of these matters require careful thought, prayer, and experience. An experienced estate plan attorney can help guide you through the decisions and prepare documents creatively to create a custom-fit plan for your particular circumstances.
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Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers. Jeff is a Fellow of the American College of Trust and Estate Counsel and the 2014-15 Indiana State Bar Association President . © Copyright 2014 Hawkins Law PC.