Pocatello Estate Planning and Second Marriages

Pocatello estate planning is designed to not only distribute your money, property, and assets to others after you die but more importantly can give you security and protection personally while you are alive. For over 70 years our experienced team of Pocatello estate planning attorneys has helped numerous clients create their own estate plans. We know our job is to look into the future to not only identify the worst things that could happen to your family and you but also to create a plan that will provide protection to everyone. One of the obvious possibilities for the future is that you or your spouse could be in a second marriage, where either you or your second spouse has children from your prior marriage.

Our Pocatello team of estate planning lawyers have helped numerous clients who are in a second marriage customize their Pocatello estate plan. Our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Second marriages often means that each spouse could have children from their prior marriage. When such a family exists, estate planning can be more complex. Each spouse often has the goal of providing for both their children and their second spouse. If you are in a second marriage here are three estate planning tools that might help you with your own estate planning.

The first estate planning tool that might help a person who is in a second marriage is the creation and use of a life estate for houses or other real property. When a life estate is given, the recipient gains a unique property interest or right. Essentially, the recipient has a legal right to remain in possession of the home or real estate such during the their lifetime.

The creation of a life estate can be quite simple. Regardless of whether you put it in your last will and testament, in a trust, or even on a deed for real estate, a spouse could designate that their home or other real estate will pass to their children. At the same time the document used can create a specific reservation of a life estate for the spouse from their second marriage. When this occurs, the second spouse has the legal right to live in the home during their lifetime, but this right then extinguishes when they die. At the same time, the documents used may actually transfer the ownership of the home or real estate to others such as your children. By doing this in your Pocatello estate planning documents your children are assured that they will own the house or real estate. They will know that the home or real estate cannot be taken away from them or sold while their step parent is alive and in possession of the property. When the step-parent dies, the children are able to legally take possession of the home or real estate.

The second potential estate planning tool that can be used by spouses in a second marriage is a trust. A trust is an estate planning document that is created and funded while a person is alive by transferring property away from the person individually and into the trust. The documents of the trust can then contain specific instructions on providing benefits to the creator of the trust. These documents can also provide benefits to surviving spouses as well, all with the intent that ultimately, when the creator and the spouse pass away, the children of the creator of the trust will receive the remaining money, assets or property in the trust. Using a trust gives the individuals who create the trust protected benefits while they are alive and the ability to make a final transfer of that property after they die.

Whether it’s a revocable or an irrevocable trust, a trust can be used to specifically protect property and keep in in the estate. A trust also assures the creator that the property will be passed to their own children after they pass away. Normally trusts contain specific directions about the assets that it holds or owns. Additionally, the trust documents often have instructions about how and to whom distributions of property are to be made after trust creator dies.

Furthermore, using a trust allows you to pick the person(s) who will be in control of the assets that are in the trust. This can be true both during your lifetime and after you pass away. The trustee is the person(s) who have the task of carrying out the directions you place in the trust, including all property distributions that will be made to children.

The third tool that can be used in estate planning is a Marital Agreement. Contracts such as marital agreements are legal and can be used in Idaho. To put it simply, a marital agreement is a contract where each spouse can list the separate property they own and that they brought into the marriage. More importantly, this document provides a specific release and waiver by the spouse any claim of ownership they might have in the spouse’s separate property. This is legally important because each spouse is provided the ability to give away their own separate property to their own children. There is no danger of the property going to someone else at the exclusion of their own children.

To be binding a marital agreement must contain a few specific things. First there must be full disclosure and a complete description of each spouse’s property that will be considered separate. Second, each spouse can use their own attorney to negotiate and create the language contained in the marital agreement. Additionally, there can be no coercion for either spouse. When a spouse signs a marital agreement is must be done freely and voluntarily. To this end, the marital agreement contain language stating that each spouse is signing based on their own knowledge and of their own free will after talking with their own attorney.

When a marital agreement is signed it is binding on everyone, including each spouse and their children. After this, each spouse can use their own estate planning documents, such as a last will and testament, to give gifts of their property to their own children. Any presumption, or grounds for any claims that the property is community and is thus owned by the surviving spouse, will be waived and relinquished.

Our team of Pocatello estate planning 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 Pocatello Estate Planning problems.