LEGAL TALK
Brady Bunch Estate Planning BY LAUREN C. ENEA, ESQ
Second marriages can feel like a fresh start. But when it comes to estate planning, balancing loyalty to your existing family and children with a desire to provide for a new spouse must be considered, along with the following:
1. INTESTACY In New York, if you die without a properly executed Last Will and Testament, you have died “intestate,” meaning the distribution of your assets will be determined by New York Law. For example, if you are survived by a spouse and children, your spouse receives the first $50, plus one-half of your es tate with your children sharing the remaining one-half. As such, it is important that a Last Will and Testament be executed that properlyreflectsyourwishes.
matically to your surviving spouse. Individuals in a second marriages often keep their assets separate from their spouse and open new joint account(s) for the assets they would want to pass automatically to their surviving spouse.
the surviving spouse’s life. Alternatively, the Trust can provide that the spouse receives the income of the trust for their life. Once the surviving spouse passes away, the remaining funds can then be distributed to the creator’s children.
4. LIFE ESTATES 6. LIFE INSURANCE Another common gesture is to allow the One can name a second spouse as a benesurviving spouse, who does not own the ficiaryonalifeinsurancepolicyasameans primary residence of the couple, to remain of providing for them at death. The insurin the home after their spouse has passed ance can also be owned by an Irrevocable away. However, the remainder beneficia - Trust, which would remove the value of the ries of the property may become concerned insurance from one’s taxable estate upon as to whether the surviving spouse has the death. The trust can provide that the income ability to maintain the home and pay for and/or principal can be used for the support its expenses. Additionally, questions may of the surviving spouse during his or her life. arise as to what to do if the spouse has to go to a nursing home or assisted living facil- Each family’s situation is di-erent and t 2. PRE-NUPTIAL AGREEMENTS ity: does the spouse’s life estate in the prop- list of considerations is not exhaustive and In New York, you cannot disinherit your erty terminate? These are questions that only examples of one’s options. If you are spouse unless you have agreed to in a con- need to be considered. An option may be to considering a second marriage or already tractual agreement, such as a pre-nuptial leave the primary residence outright to the remarried, it is important to speak with an agreement. This is because, under New spouse in lieu of his or her receipt of other estate planning attorney who has worked York Law, each spouse has a right of elec- assets, or to allow the surviving spouse to with clients who have had multiple marriagtiontoreceivethelargerofor $50, one- remain in the home for a period of time, es to discuss structuring an estate plan that third of the deceased spouse’s net estate, such as two years, in order to allow him or fitsyourneeds. known as the “elective share.” Regard- her to arrange for alternative housing. n n n less of what one’s Last Will and Testament Lauren C. Enea, Esq. is an Associate at Enea, Scanlan & Sirignano, LLP. She concentrates her practice in provides, the surviving spouse can still 5. MARITAL TRUSTS seek their elective share, unless they have A trust can be established for the surviving Wills, Trusts and Estates, Medicaid Planning, Guardianships - be cre and Special Needs Planning and Probate/ waived said right in a pre-nuptial agree- spouse’s benefit. These trusts can Estate Administration. Ms. Enea believes it is never to ated within one’s Last Will and Testament or ment. While not the most romantic gesture, early or too late to start planning for your future. She the execution of a pre-nuptial agreement through probate avoidance tools, such as is admitted to practice law in New York and Florida Revocable Trusts. Additionally, the trustmay be prudent before a second marriage. and is an active member of the Executive Committee ees of the trust for the surviving spouse can of the New York State Bar Association (NSYBA) El3. JOINTLY HELD ASSETS be the children, friends or relatives of the der & Special Needs Section. She can be reached at If you and your spouse own property “joint creator of the Trust, who can ensure the 914-948-1500 or at L.Enea@esslawfirm.com. Please with rights of survivorship,” it passes auto- funds are not depleted imprudently during visit www.esslawfirm.com for more information.
What steps have you taken to protect your life savings from the cost of long term care? . Elder Law . Asset Protection . Medicaid Applications (Nursing Home/Home Care) . Guardianships (Contested/Non-Contested) . Wills, Trusts & Estates WHITE PLAINS
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