Book Details

Estate Planning for Second Marriages

By Stephanie B. Casteel and Eric A. Manterfield

  • ORDER HARD COPY: 2011
  • Softcover
  • 104 pp.
  • ISBN: 978-0-8318-0134-2
  • Order Code BK86
  • $129.00
  • ONLINE: 2011
  • Online
  • 104 pp.
  • $99.00

Are your clients part of a “blended family”?

Handling prenuptial planning for a second marriage?

Dealing with the estate planning challenges of changing client needs?

Reviews

For estate planning or family law attorneys who counsel these people, Estate Planning for Second Marriages is a practical resource. The authors are experienced trust and estate attorneys who write for an audience comprising busy practitioners, not academics.

Patrick R. Thiessen, The Colorado Lawyer

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Overview

Many married couples you represent will be in a second (or subsequent) marriage and will have children from a prior marriage. Although there are certainly exceptions to this general rule, it is still unusual for clients to adopt the children of their new spouse. With this reason, the couple frequently tells you about “his” children, “her” children and, perhaps, “their” children.

Unlike the typical couple involved in a first marriage, couples involved in a second marriage frequently have substantial assets in their individual names alone. Although there certainly can and will be jointly held property, the existence of substantial assets in the sole name of each spouse may be significant. Joint property generally passes to the surviving joint owner at the death of the first spouse. Life insurance and retirement benefits will pass to the surviving spouse if he or she is named as the beneficiary.

Many couples in a second marriage want their individually owned assets to pass to their children from a prior marriage, either when the first spouse dies or at the death of the surviving spouse. They may want the couples’ assets to pass to the two families after the death of the surviving spouse. This transfer will not occur in accordance with the couples’ wishes without careful estate planning.

Estate Planning for Second Marriages helps attorneys handle these blended family situations, in which each spouse has children from a prior marriage and each spouse wishes to protect his and her individual assets for their respective children from the prior marriage. The couple also hopes to provide for the survivor, or if a divorce occurs, to provide for an orderly, predictable and conflict-free distribution of assets. The couple also hope to make use of the tax advantages available to married couples, such as filing joint income tax returns or making split gifts, in a mutually advantageous, systematic, fair, and transparent, way.

Casteel and Manterfield cover:

Prenuptial and Postnuptial agreements

Managing asset distribution

Whether and how one spouse can control the other spouse's use of separate property

What specific gifts are desired even when the first spouse dies

The ethical constraints involved in representing the couple

 

The text contains numerous practice pointers such as:

Although many clients who own sole title to the “marital” residence wish to permit the other spouse to reside there, the real world restrictions which that spouse wishes to impose make the drafting and later administration of this type of trust very difficult.

A Qualified Personal Residence Trust (QPRT) could purchase the marital residence from the husband who owns the property. The QPRT provides the husband and wife with respective life estates, for the life of the survivor of the couple. The Trust terminates to provide a remainder interest for the benefit of the husband’s children. All those benefitting from this Trust contribute amounts that reflect their respective actuarial interests in the Trust.

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About the Author

Stephanie B. Casteel practices law at the firm of Abrams, Davis, Wallace, Mason & Long, LLC, in Atlanta, Georgia. She is a Fellow of the American College of Trust & Estate Counsel and member of its' Charitable Planning Committee. She served as a member of UPMIFA Committee and Fiduciary Legislation Committee of the Fiduciary Law Section of the State Bar of Georgia and as a member of the Board of Directors of Atlanta Estate Planning Council. She has been recognized in Best Lawyers in America (Non-Profit/Charities Law and Trusts & Estates) and is recognized as a "Super Lawyer" and as one of the "Top 50 Women Lawyers" by Law & Politics Magazine. She is a frequent national speaker and published author on charitable issues, premarital agreements, trusts and estate planning.

Eric A. Manterfield is a partner in the Indianapolis, Indiana law firm of Krieg DeVault LLP, where he concentrates his practice in estate planning, family business succession planning, charitable planning and probate and tax litigation, resident in the firm's Noblesville, Indiana office. Eric is an Indiana Board Certified Estate Planning and Administration Specialist. Eric is a Fellow of the American College of Trust and Estate Counsel. He was identified in 2009 by Worth magazine as among the top 100 estate planning attorneys in the US. Eric is listed in "The Best Lawyers in America," "Indiana's Best Lawyers," and "Indiana Super Lawyer." Eric served as an Adjunct Professor of Law at the Indiana University School of Law in Bloomington, where he taught Estate Planning for thirty years.

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Table of Contents

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Abbreviated Table of Contents

I. Introduction to premarital agreements

II. History of premarital agreements

III. The Uniform Premarital Agreement Act

IV. Enforceability of premarital agreements

V. Drafting an effective premarital agreement

VI. Alternatives to a premarital agreement

VII. Comment on postnuptial agreements

VIII. The couple in a second marriage 

IX. Ethical considerations

X. Control issues

XI Specific gifts when the first spouse dies

XII. Fiduciary considerations

XIII. Estate planning implications of a premarital agreement

XIV. Conclusions

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