Idaho Estate Planning and Second Marriages

Idaho estate planning, like many other legal actions you can take, is designed to provide you with protection and security while you are alive and to distribute your money, property, and assets to others after you pass away. Our team of Idaho estate planning attorneys has been assisting clients in creating customized estate plans for over 70 years. Our goal is to look down the road of the future and identify the worst possible things that can happen to you and your family and then to assist you in protecting you and your loved ones through your customized Idaho estate plan. One of the things that could happen to either you or your spouse is that you are in a second marriage where you or both you and your spouse have children from your previous marriage.

Our team of Idaho estate planning attorneys has experience in assisting clients in customizing their estate plans anytime a second marriage is involved. Consisting of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley, our team of estate planning attorneys can help you. Second marriages often mean that each of the spouses has children from a previous marriage. With this kind of family dynamic, estate planning often becomes more difficult to carry out in a way that provides for your family members without offending your current spouse. If you are in a second marriage and you are considering estate-planning here are three things that you should know that may help you.

The first thing you should know is how using a marital agreement may benefit you and your spouse in your second marriage. Marital Agreements are allowed to be used in Idaho. A marital agreement is simply a document where each spouse has an opportunity to not only list the separate property that they own in the marriage, but also to release and waive any interest they would have in the other spouse’s separate property. The reason this is important is because it gives each spouse an opportunity to give away their separate property to their own children without being in jeopardy of the property going to their spouse and then to their spouse’s children in a way that would exclude their own children from receiving any portion of their estate.

For a marital agreement to be binding there has to be full disclosure and a complete description of the property that will be considered separate for each spouse. Each spouse then has an opportunity to use a separate attorney of their choice to assist them in negotiating the language that’s in the marital agreement. Finally, neither spouse can be coerced or forced into signing a marital agreement. The marital agreement itself will state that each individual is signing of their own free will and based on their own knowledge after consulting with their own attorney.

Once a marital agreement is in place it is binding on each spouse and on their children. Each spouse is then free to use their estate planning documents, such as a last will and testament, to provide specific gifts of their separate property to their own children when they die. There will be no presumption, or grounds for any claims that the property is community and is thus owned by the surviving spouse.

The second tool that is available to spouses in a second marriage is the use of a trust. A trust is an estate planning tool that is created and funded while a person is alive. The trust document then works to provide benefits to the individuals who created the trust while they are alive while at the same time giving them the ability to transfer property and distribute it to others after they pass away.

Whether it’s an irrevocable or a revocable trust, each can be utilized to protect property in an estate and to assure that it will be passed to their own children after they die. Trusts normally contain very specific information about the assets that it owns. Further, trusts often contain very descriptive instructions concerning distributions of property to be made after the individual creating the trust passes away.

Finally, a trust allows you to identify and name the individual that you want to be in control of these assets both during your lifetime and after you pass away. The trustee is tasked with the responsibility of carrying out the instructions that you have left in the trust, including distributions that should be made to your children.

An additional tool that is often used by individuals who are in a second marriage is the creation of a life estate. A life estate is nothing more than a real property interest and right to remain in possession of real estate such as a home during the person’s lifetime.

As an example, whether it is in a person’s last will and testament, or in a trust, a spouse could designate that their real estate will pass to their children while at the same time reserving a life estate for their second spouse. This means that their second spouse will be able to live in the home during their lifetime. At the same time, the instructions and subsequent deed actually transfers ownership of the home to the children. This way the children have an assurance that they own the house and that the house cannot be sold or taken away from them while their step parent is alive. They only need allow the step parent to live in the home while they are alive. Once the step-parent passes away, the surviving children can take possession of the home and can then do with it what they want.

Our team of Idaho lawyers can help you with any of your estate planning needs if your spouse has passed away. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at racine@racinelaw.net. We will answer your questions and help you solve your Idaho Estate Planning problems.