[WSBARP] Blended Families

[Eric Nelsen]

Jim--there was a discussion was back in 2015 I think. I found this in my sent mail from one of my previous posts:

My primary concern always is identification and control of the decedent's assets that are supposed to eventually go to the decedent's kids, through an unknown amount of time until the surviving spouse dies. My secondary concern is flexibility for the surviving spouse to accommodate changed circumstances in a way that fairly balances the surviving spouse's interests with that of the decedent's kids.

When we last had a listserve discussion about Will contracts (in the context of mutual Wills), I copied into my files the following comments from others:

Mutual wills are clumsy and the law relating to them is not well developed.  If there's a possibility that one of the spouses might remarry following the first death, consider how the survivor's mutual will would work, in light of the new marriage.  E.g., if surviving wife remarries and doesn't make a new will, upon her death the 2nd husband becomes entitled to that share of the wife's estate as if she had died intestate.  That would blow up any plan envisioned by mutual wills.  Or, suppose wife dies, surviving husband remarries; the new wife then dies and leaves her estate to the husband.  Can surviving husband bequeath any of the assets that he inherited from the 2nd wife to her kids?  Is the surviving spouse precluded from making non probate transfers?  Gifts?

Just food for thought.  Trusts are more flexible-they can account for all the assets acquired by the couple, without locking in a survivor with respect to assets acquired with a new spouse.

And irrevocable means that it can be problematic for surviving spouse to deal with changes in the circumstances of children, such as the need for a special needs trust for a subsequently disabled child; or other circumstances that require change. I would at least retain the ability to change provisions as to one's own children; since the purpose is (I assume) to prevent the children of deceased spouse from being disinherited.

If for some reason I do conclude that mutual Wills might be the way to go, my starting point is the following draft language, subject of course to editing as I consider the specific circumstances and the priorities of the client:

This Last Will and Testament is executed pursuant to an agreement with the Testator's spouse that (1) they shall execute and maintain mutual Wills that make reciprocal provisions for disposition of property after they both are deceased as set forth in this Last Will and Testament, and that (2) after the death of the first of them, the Last Will and Testament of the survivor shall be irrevocable as to disposition of (a) all property that was community property at the time of the first spouse's death and the rents, issues, profits, and proceeds thereof, and (b) any and all other property received by the survivor from the first spouse to die, whether under the Will or by non-probate transfer or otherwise, and the rents, issues, profits, and proceeds thereof. By executing this Last Will and Testament, the Testator acknowledges the existence of said agreement between the spouses, and intends to be bound thereby.

Have the other spouse sign under this contract language, on the testator's Will, so there is contemporaneous acknowledgment of the contract by both parties.

A major problem I see with this draft language is the rat's nest of asset-tracing that has to be done when the surviving spouse dies. It's a huge opportunity for litigation and a great way to ruin relationships. Thus my preference for segregation via a trust when the first spouse dies; it eliminates the need to trace assets.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Jim Doran
Sent: Thursday, April 26, 2018 2:37 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] Blended Families

Listies:

I am pretty sure we have been over this matter before.  but let me ask a simple question regarding blended families.

Isn't it the easiest way to deal with property owned as CP in a blended family situation for each spouse to make their Will out to give each one's CP interest to their own children AND to then execute a contract to NOT change the Wills upon the death of the first of them.  Then give a copy of the Will and contract to each side of the blended family so that the "beneficiaries" will be able to make sure that the contract is followed.  The beneficiaries would have standing to enforce the contract, if need be.

very other approach seems to be rather difficult.

Thank you.

Jim Doran

James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>
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