By Chuck Roulet, Attorney · Licensed in Florida and Minnesota
Short answer: Yes, it can happen. If you leave everything to your spouse outright and they later remarry, their new spouse can end up with a large share of it, or all of it. A trust that holds your share after you die can give your spouse full use of the money while keeping it for your children.
How It Happens
A viewer comment on a popular estate planning video summed it up: when her mom died, her stepdad remarried quickly, and his new wife ended up with her house.
Here’s the usual path. Most married couples leave everything to each other outright. When the first spouse dies, the survivor owns it all in their own name. If the survivor remarries, three things can move that money to the new spouse:
- Joint titling. Adding the new spouse to the deed or to bank accounts means those assets pass to the new spouse automatically.
- A new will. The survivor can rewrite their will at any time and leave everything to the new spouse.
- Spousal rights. Even without a new will, Minnesota and Florida law give a surviving spouse rights to a share of the estate.
None of this requires bad intent. It often happens slowly, through small decisions, years after the first spouse is gone.
It’s Not Just a Blended-Family Problem
Couples married for decades, with no stepchildren, face this same risk. What matters is what happens after the first death, and no one can predict that.
The Fix
Instead of leaving your share to your spouse outright, you leave it to a trust for your spouse’s benefit. Your spouse can live in the house and use the income and, when needed, the principal for their health and support. They aren’t cut off.
The protection comes from the assets staying titled in the trust. They can’t be re-titled jointly with a new spouse, and they can’t be redirected by a new will. When your spouse dies, what’s left goes to your children.
This can be built into a revocable trust you set up now. It takes effect automatically when the first spouse dies.
One catch: this protection has to be built in while both spouses are alive. Once the first spouse dies and everything has passed outright, it’s too late to add. Remarriage isn’t the only risk, either. I cover divorce, lawsuits, creditors and the estate tax too in Why You Shouldn’t Leave Everything to Your Spouse.
Watch the Video
I explain this in my video “Is Getting a Trust a HUGE Mistake? What I’ve Learned After 30 Years”
Read the full article: Is Getting a Trust a Huge Mistake? What I’ve Learned After 30 Years
If you want to make sure your children are protected no matter what happens after you’re gone, schedule a consultation at rouletlaw.com. Minnesota: 763-420-5087. Florida: 941-909-4644 or fill out the contact form on this page.
About the Author
Chuck Roulet is the founding attorney of Roulet Law Firm, P.A., with offices in Minnetonka, Minnesota and Venice, Florida. He has practiced estate planning and elder law for nearly 30 years and is one of very few attorneys licensed in both Minnesota and Florida. Chuck has trained more than 35,000 attorneys and financial professionals as a continuing education speaker and is the author of three books, including The Florida Snowbird Guide. Florida: 941-909-4644 · Minnesota: 763-420-5087 · rouletlaw.com
This page is general information, not legal advice. Reading it does not create an attorney-client relationship.
