Setting up a trust is critical, particularly in view of the last will and testament of the late actor, James Gandolfini. This is a good example of how a second marriage and children from a prior marriage can affect estate planning. Gandolfini had a 14-year-old son from his first marriage and an infant daughter from his current marriage.
Some have criticized the Gandolfini will because he left 20 percent of his estate to his wife and failed to take advantage of the unlimited estate tax exemption for gifts made to a spouse. This criticism may be unwarranted. First, his will mentions he made other provisions for his wife. These other provisions could have been done in a variety ways which, unlike a will, are not public, such as jointly-owned property, life insurance, or a trust. Second, reducing taxes is not the only goal of estate planning. See a previous blog entitled Stop the Tax Tail Wagging the Estate Planning Dog, for more on this. Making sure his son was taken care of could have been a more important estate planning goal than a tax deduction.
When I started practicing law over 37 years ago, the typical family was a father, a mother, and two children. That dynamic is now more an exception than the rule. Blended families with children from prior marriages are much more common. Estate planning techniques are more complex, as are extended families with more parents and step-children in the picture. Many things change when people get remarried. Below are just a few examples of things to consider.
What if you don’t have a living trust or a will? In Florida, if someone dies intestate (without a will), state laws dictate who will receive the inheritance. The laws may or may not reflect what you want. Under current laws, if there are children from prior relationships, the surviving spouse receives 50 percent of the estate. If you have an estate plan, you can dictate who you want to receive and how much.
What if you already have set up a trust or a simple will leaving everything to your kids? Even if you tell each other you want to keep things separate, this may not happen without the help of an estate planning lawyer. In Florida, your spouse is automatically entitled to receive 30 percent of your estate unless a written agreement is in place between the spouses that provides differently.
What about your home? Maybe you bought your home years before you got remarried. You paid the down payment and many months of mortgage payments. Maybe you have even paid it off. When you are remarried, your spouse has an interest in your homestead unless a written agreement is in place between the spouses that provides differently. Here is yet another reason for using an estate planning law firm.
You and your spouse should discuss your estate planning goals. You may decide to establish one or more trusts, especially if step-children are involved. Trusts are useful and flexible estate planning tools, so you can provide for your surviving spouse and your children.
As we go through life, things change. Gandolfini was savvy in that he updated his estate plan two months after his daughter was born. It is important to periodically review your estate plan and update it after every major life event, such as marriage, the birth of a child, or moving to another state. Sounds like work, doesn’t it? We have a new program that shifts the work of reviews and updates to our staff. Stross Law Firm now offers an estate planning maintenance program, Peace Of Mind A Life Plan for Everyone, so your loved ones will be taken care of as you and your spouse have decided.
This article is not intended to provide legal advice or encourage anyone to do estate planning without the guidance of an estate planning lawyer. Call us at 813-852-6500 to schedule a free 30 minute consultation with an estate planning lawyer.