Since people are living much longer than in the past, the frequency of remarriage is increasing, even in later years. This last phenomenon is raising a series of estate planning problems in the law of the elderly. On the other hand, we are also seeing the blended family with “his, hers, and theirs” children more often, creating another set of potential pitfalls.

Most of these estate planning issues can be resolved with consideration on the part of clients and the compassionate guidance of their estate planning attorney.

These are some of the key problems and possible solutions for planning second marriages.

1. The duration of the second (or third) marriage and also the relative financial positions of the parties. A client recently came to see us whose husband has early Alzheimer’s. His IRA named his children as beneficiaries many years ago. The couple have now been married thirty-five years and the wife would be destitute without her husband’s IRA. Hopefully, the husband has the ability to understand the situation and make a change. One option: The husband can leave his IRA to his wife on the condition that she names her children as beneficiaries upon her death.

2. In our experience, much thought should be given to what the children of the first marriage will receive if their father is the first of the couple to die. Looking at the matter from the heirs point of view, we can often provide an outright bequest of a portion of the estate, or name them as beneficiaries on an insurance policy, so that they feel loved and cared for by their parents and not relegated. to a lower position. This is especially important if the father has married a much younger spouse. Needless to say, this will also greatly affect his future relationship with the surviving stepfather. Lack of consideration in this area alone has caused a lifetime of pain and anguish for many children of remarried parents.

3. The use of trusts is often an essential tool when the surviving spouse needs the majority of the combined assets to survive. Here, the issue becomes how to ensure that the children of the deceased spouse will receive their fair share in the death of the surviving spouse. We generally establish one trust if the estate is not subject to estate taxes, or two trusts if necessary to reduce or eliminate estate taxes, and make both spouses co-trustees of the trusts. The trusts provide for an equitable distribution between him and his families after the second death. What stops the surviving spouse from raiding the trust and giving it all to her own children? Generally, we recommend a professional co-trustee to serve with the surviving spouse to prevent this from happening.

4. The estate planner must consider any prenuptial agreements, as well as any obligations to children arising from a divorce decree. They may need to be changed after several years to reflect the current situation, which may have changed a lot. For example, after many years one of the spouses will often wish to grant lifetime rights in the marital home to the other, in case the latter is the survivor, something expressly prohibited in the prenuptial agreement drawn up many years before.

5. Long-term care obligations have proven intimidating for many couples later in life. Even a prenuptial agreement that states that the spouses’ assets are separate and that they have no mutual financial obligations is not binding on Medicaid. Medicaid considers the combined assets of the married couple to be available for the care of the sick spouse, regardless of whose name they are held. Therefore, the need, amount, and availability of long-term care insurance is often a factor in second marriages.

6. For wealthier couples, one spouse may wish to care for their less well-off spouse for their entire life, but then have the unused funds revert to their birth family. In this case, a QTIP (Qualified Terminable Interest in Property) trust can be established for the surviving spouse, which will (a) provide a lifetime income, (b) delay, reduce, or often eliminate taxes on the estate, and (c) protect the estate for the children of the predeceased spouse.

As you can see, with a little consideration on your part and the help of an experienced elder estate planning attorney, often drawn from hundreds of cases, couples remarrying have the ability to “do right” for all concerned.