A reader sought advice regarding a friend and her husband’s estate planning. The couple, married for 30 years, jointly own substantial real estate holdings. Both have children from previous marriages. The wife wishes to ensure her children inherit her share upon her death.
The husband is agreeable to establishing a trust, but prefers to serve as its administrator. The reader wondered about the best approach to protect the wife’s children’s inheritance.
The columnist noted that neither a will nor joint tenancy with the right of survivorship guarantees the intended outcome. Wills can be altered or created secretly, potentially excluding family members. A prenuptial or, in this case, a postnuptial agreement, offers stronger legal protection. The columnist shared a case where a husband created a secret will, leaving his wife unaware of its contents.
The columnist emphasized the importance of addressing this issue proactively. Property owned before the marriage remains the sole possession of the original owner, unless commingled through shared financial contributions, such as renovations or mortgage payments. Under the current joint tenancy, the surviving spouse would inherit all property.
One solution, besides potentially severing the joint tenancy, involves establishing a revocable trust that becomes irrevocable upon the death of either spouse. The columnist referenced McLane Middleton, a law firm, which stated that most trusts include provisions for amendments.
However, McLane Middleton also highlighted the high evidentiary standard—clear and convincing evidence—required to successfully amend a trust if the initial terms are unclear. This standard is more stringent than typical civil cases but less so than criminal cases.
The columnist concluded by offering general advice for blended families. They should keep premarital assets separate, ensure beneficiary designations and wills are current and regularly reviewed, and understand property ownership terms before signing any agreements. The couple needs to reach a compromise to protect the interests of all their children.
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