A Big Problem In Trusts for Blended Families

The biggest problem I see with family trusts is when they allow one spouse to completely amend the trust after the death of the other spouse.  Often it’s for the purpose of disinheriting the deceased spouse’s kids from a prior marriage.  Ouch.

Here is how it usually happens.  Husband and Wife each have kids by a prior marriage.  They do a trust in which all their kids will share equally in whatever the couple has after they both are gone.  The couple thinks they have a deal.   But, when the first spouse dies the survivor often sees a lawyer and realizes that the trust provides for the surviving spouse to completely change the beneficiary designations to cut out the kids of their deceased spouse!  

Most trusts are drafted to allow the survivor that ability.  Such provisions are so common that it usually is not even an explicit conversation the clients have with their attorney.  It just sorta slides in there as a function of how things are generally done.  The ability for the other spouse to unilaterally change the beneficiaries is NOT what people generally want.

The point is this: if you are in a blended family and do a trust be sure that you consider and understand the revocability/amendability of the beneficiary provisions once the first spouse has died.  One simple sentence would do the trick: “the beneficiary distributions to all our children equally under this paragraph are irrevocable after the death of the first spouse to die; no spouse shall have the right to unilaterally amend or revoke to favor some beneficiaries over others.”  As long as there are no other provisions to confuse that statement all will go according to plan.  Be careful, a lot of trust language designed to give the surviving spouse needed financial flexibility also has the effect of muddying the waters about how and when the surviving spouse can amend/revoke after the death of the first spouse.  

About Edward B. Batista

The Law Office Of Edward B. Batista. Offices in Sacramento and Nevada City. Specializing in estate litigation, estate planning, wills/trusts, probate, contracts and real estate.
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