I was reading through the Sunday paper today and came across an interesting question in the Social Q's section of the paper. The writer was a wife who married a man who is older than she is. It seems that before they were married, her husband had created a will that left his house and the rest of his estate to his sister. At the time he made the estate plan, he didn't think he would get married, but now he's married and has a child with his wife. His wife is concerned that if something happens to him, there will be nothing left for her and their child and they would be left without a house to live in.
As a first note, good on the husband for getting an estate plan done while he was single and didn't have children. Far too many clients have come to meet with me with the misguided notion that they don't need estate planning because they are single and without children. In this case, the husband has at least done some planning and there are some simple ways to make sure that the wife and daughter are taken care of.
Why Won't My Husband Change His Will?
My husband is a fair bit older than I am. Before we met, he didn’t expect to get married, so he made a will leaving his house and his entire estate to his sister. The house is now our home, and I am happy to report that things are going swimmingly. We had a baby last year! I never worried about his will before our daughter was born, but now I’m afraid if something happens to my husband, my daughter and I will be left homeless. I’ve raised the subject with him a few times. He agrees that his will should be updated, but it never seems to happen. Obviously, this is a sensitive issue. Any advice?
One of the first things that I thought of as I was reading this was, of course, that in the end, it's his estate plan and he can choose to update it when he would like. There are some ways that this situation can easily be addressed.
Revise Your Will When There's a Major Life Event
One of the most common bits of advice that estate planning lawyers will tell you is that whenever there's a major life event, it's a good time to review your estate plan documents and see if they need to be updated. Some common events to look for:
- You Get Married
- Children are Born
- Children Graduate College
- Your Children Get Married
- Grandchildren are Born
In the advice column, we've got two different life events that would trigger a good time to review an estate plan, marriage, and the birth of a child. The advice from the columnist was that the wife should suggest they create "reciprocal wills" where they leave everything to each other. For married couples with young children, this is a common path for their first estate plan together and would probably work well for the writer and her husband.
As the column points out, it's important with a young child to make sure to have an estate plan that establishes a guardian for the young child and I would also recommend a trust of some type to be set up to manage the finances for the child. Many people will benefit from this kind of arrangement and if you set it up as a testamentary trust, you can minimize the amount of upfront work you need to do to prepare.
The Elective Share
The advice columnist also made sure to mention at the end that they were not addressing the issue of an elective share, which also could become an important part of the wife's question. Under the elective share, if you leave your spouse out of your will, intentionally or unintentionally, they may have a right under law to actually inherit part of your estate anyway. Depending upon what state you are in when you die, your children may also have a right to inherit under the elective share as well. So if you are in a situation like the one described in the question, it's important to understand the elective share rights in your state. Rather than hop on to Google, it's important to speak to a professional who can explain the estate planning implications for you.
Another method of planning for your family, which is part of your estate plan but is not part of your will, is to utilize the beneficiary designation on assets like insurance policies and retirement accounts. These allow for the funds in those assets to be transferred directly to someone outside of your probate estate and would lessen the fears of the wife in the column of being left destitute and without a place to live.
The advice columnist got it right - the wife should make sure to talk to an attorney to make sure to get everything in order. Whether you've never had a will prepared before or you're like the husband and had one prepared before you got married, when a major life event happens, it's important to talk to the professionals you work with, your accountant, your financial advisor, your attorney, to make sure everything is correctly updated. If you're ready to get started with the legal piece, let's set up a Legal Strategy Session to discuss the best options for you and your family so you don't have to turn to the local newspaper for advice on estate planning.