[WSBARP] Blended Families

Fri Apr 27 07:15:17 PDT 2018

This would require a slight modification if both spouses have children from
previous marriages and each wants their heirs to get their portion of the
estate.

Marifal Trust, eh?  Maybe I can find an example in the Law Library.  It is
pretty good here in Whatcom County.

Thanks,

Jim

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

On Thu, Apr 26, 2018 at 9:21 PM, Kate Gamble <uptownlawpt at gmail.com> wrote:

> 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 spouse’s children  upon the
> surviving spouse’s death.
>
> Kate Gamble
>
> Attorney at Law
>
> Uptown Law PLLC
>
> PO Box 835
>
> Port Townsend, WA 98368
>
> (360) 379-1818
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>
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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
>
> 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.w
>> sbarppt.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
>>
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