Estate Planning & the Risks of Leaving It All to Your Spouse: A Second Love

The Risks of Leaving It All to Your Spouse: A Second Love

Barry E. Haimo, Esq.

April 2, 2015

When planning their estate, many individuals in a marriage try to keep it simple by leaving everything to their spouse. While it may be tempting to take the quick and easy approach to estate planning, a simple will often is a mistake. After all, life is complicated, and many problems cannot be solved by a simple solution. Leaving everything to your spouse may seem like the path of least resistance in theory, but this strategy could cause complications and conflict down the road.

If you are married with children, you probably hope to leave your spouse with access to your estate while he or she is living, and to leave the remaining assets behind to your children. However, you may not have considered the possibility that your spouse might choose to leave these assets to someone else, thus leaving your children with nothing. To better understand the potential risks of leaving everything to your spouse, let’s take a look at the Fox family.

A Loving Husband’s Unexpected Betrayal

Timothy and Melanie Fox were the proud parents of three beautiful children. The Foxes enjoyed a happy marriage throughout their lifetime, and remained happy, active, and affectionate long after their children had grown and left home. Timothy and Melanie planned their estate together, leaving everything to each other under the understanding that the surviving spouse would leave everything to their children.

Unfortunately, an unexpected heart attack took Melanie’s life at the young age of 58. Within the next four years, Timothy began seeing a young woman with two daughters of her own, whom he married within a few years.

After the marriage, Timothy began to pull away from his biological children, moving to his wife’s hometown in southern Florida and seeing his children less and less. Timothy’s new wife didn’t enjoy spending time with the children from his former marriage, and discouraged him from visiting them or inviting them to stay, claiming it made her own daughters feel uncomfortable.

As Timothy grew older and more vulnerable, he became more and more dependent on his younger wife, and she became more demanding and bossy. He didn’t put up much of a struggle when she demanded he revise his will and leave everything to her.

When Timothy died, his children were heartbroken to lose a father they had seen so little of during recent years. But when they learned he had changed his will to leave everything—including the assets their mother had left him—to his new wife, they were shocked and deeply wounded. Not only had they been relying on receiving support from their parents’ inheritance, they were devastated to find that their father had betrayed both their mother and his children.

When Timothy’s second wife died, she left everything to her two daughters, leaving nothing for Timothy’s three children. Ultimately, Melanie’s hard-earned assets went to the daughters of his second wife—people she’d never even met before.

Favor an Effective Estate Plan over a Simple One

The Foxes’ story is just one example of the many conflicts caused by an overly simplified will. Instead of aiming to create a simple will when estate planning, your goal should be to create an effective will.

Rather than going the simple route and leaving everything to your spouse, consider leaving your assets in a trust. When you create a trust, you can arrange to allow your spouse access to all the money they need, whenever they need it. You can appoint your spouse as the trustee, effectually leaving your spouse with the same ability to access funds as they would have had if you had left it to your spouse directly. However, since your spouse will not technically own the assets, they can’t give the money to anyone else after their death. By leaving your assets in a trust, you safeguard them for your kids without harming your husband or wife.

Estate planning is a complicated, often sensitive process, but that doesn’t mean you should go the easy route by giving up and creating a simple will. A simple will may end up causing many more problems in the future, and may not be able to protect your survivors or ensure your wishes are honored.

If you are planning your estate with your spouse, it’s best to consult an attorney with experience in the many strategies and techniques of planning your estate when you are married and have children. An estate planning attorney can explain the different options available to you, and help you craft a plan that is most beneficial to your family.

Barry E. Haimo, Esq.
Haimo Law