[WSBARP] Blended Families

Thu Apr 26 21:21:36 PDT 2018

Another approach would be a will with a "Marital Trust" provision.  Each
spouse leaves their share of assets to the other spouse in a testamentary
trust.  The surviving spouse has basically a life estate in the assets, with
the remainder going to first-to-die spouse¹s children  upon the surviving
spouse¹s death.  

Kate Gamble

Attorney at Law

Uptown Law PLLC

PO Box 835

Port Townsend, WA 98368

(360) 379-1818

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> 

From:  <wsbarp-bounces at lists.wsbarppt.com> on behalf of Jim Doran
<jim at doranlegal.com>
Reply-To:  RPPT Listserve <wsbarp at lists.wsbarppt.com>
Date:  Thursday, April 26, 2018 at 4:01 PM
To:  RPPT Listserve <wsbarp at lists.wsbarppt.com>
Subject:  Re: [WSBARP] Blended Families

Eric:

Ok.  This is good.  I think the language would be contractual in that both
agree to the Trust upon the death of the first of the spouses.  Hence, a
combination of both approaches, contract and trust.

Does anyone have language as to that effect?

Jim Doran

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

On Thu, Apr 26, 2018 at 3:28 PM, Eric Nelsen <Eric at sayrelawoffices.com>
wrote:
> 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
> www.doranlegal.com <http://www.doranlegal.com>
> 
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