Often married couples have Wills giving everything first to each other and second to agreed-upon beneficiaries. However, since a Will does not take effect until death, after one spouse dies, the other can change their Will to eliminate the relatives or favorite charities of the deceased spouse. For a “blended” family, in which one or both spouses have children by a previous marriage or relationship, this can be a real concern.
There are at least four ways to address this situation:
- Sign a Will Contract in which both spouses legally agree that the survivor will not change their Will.
- Provide separately for your own family instead of giving all to your surviving spouse.
- Give to your surviving spouse, not outright, but in trust, so that when the surviving spouse dies, the remainder in the trust will go to your beneficiaries.
- Trust the survivor not to unreasonably change their Will, but recognize that this is not binding.
Many married couples find a Contract distasteful, and there are many difficulties enforcing these types of agreements. With any of the choices, there are advantages and disadvantages. You should discuss these with you attorney and then decide what is the best way for you to do your estate planning.