Your Estate Plan: Finished Does Not Mean Final
There is something that feels “final” to most of us when we work through the estate planning process; making the important decisions, signing the papers, and tucking them neatly into a binder feels like the completion of a process. There is, perhaps, even a sigh of relief that you’ve addressed something significant from your “To Do” list. However, does finishing the process really mean your estate plan is final? The short answer is “No.” You really need to think of your estate plan as a set of living documents—they can (and sometimes should) be changed at any time up until the creator passes away.
Sometimes, this basic rule that a will or trust is not binding on anyone until the creator’s death can come as an unhappy surprise. It can also cause significant family conflicts. This most often happens in second marriages that include step-children. In second marriages, couples frequently establish reciprocal wills, leaving assets to the surviving spouse and then distributing remaining assets among children. What can be missed is the fact the surviving spouse has every right to change his/her will or trust during his/her lifetime. This means that, after the first spouse passes away, the survivor has the use and benefit of all the assets of the marriage and has the ability to change his/her estate plan in any way he/she chooses—including disinheriting step-children. Whether this is the “right” thing for the surviving spouse to do isn’t a question for us to answer. The answer is that the surviving spouse has the legal right to make such changes.
Our courts have repeatedly upheld the surviving spouse’s right to completely change a will or trust, even when the assets at issue have been inherited through a reciprocal will. Once the first spouse passes away and assets transfer, they (typically) belong to the surviving spouse without restriction. Promises made between spouses do not override or alter this legal principle.
What can you do to anticipate the ultimate impact of your estate plan? We suggest seeking qualified advice that will help you and your spouse think through both the process and the outcome of your plan. This includes weighing the effects of any changes your surviving spouse may make to his/her estate plan after your death.
Making sure your estate plan does what you want, and that unhappy surprises are avoided, is achievable with thoughtful and thorough planning. It also means living with your plan, so you can respond to changing circumstances and needs throughout your lifetime.
We like to suggest that your estate plan should keep up with the “pace of life,” and we would be happy to consult with you about insuring your estate plan gives you the peace of mind you deserve.
