Agree Not to Change Plan so You Can Keep it in Your Family

If you want to make sure your spouse cannot change your estate plan so the second wife or second husband does NOT get the assets, then you need to do some advance planning. It is not too difficult to assure your assets will stay in your family. What you need to do is to put together a good estate plan that uses trust law to keep your assets in your blood family (not to in-laws) and an agreement not to alter the plan.

With an agreement not to alter the plan signed by a husband and wife after they create their plan, you can effectively create future interests in your children that cannot be undone. This will give your children the right to set aside a disposition not in accord with the planning you did together. Little things like this can be the difference between a child being disinherited or not.

Although, it is not too frequent that a spouse would remarry and change their plan, it can and does happen. The result is that the children are disinherited. That’s not a good result. With a little bit of advance planning, you can make sure it will NOT happen in your case. Your children will thank you.

For example, let’s say Frank and Liz are happily married and have one son whose name is Frank, Jr. If Frank and Liz do not sign an agreement whereby they agree not to change their plan after one passes, then the survivor of them can change their plan as they wish. They could leave everything to a second spouse.

This agreement is so simple. It should be strongly considered in every case. The agreement basically states both parties agree not to change their plan and that if the survivor plans on remarrying, they will have a prenuptial signed three months prior to the scheduled date for the wedding. A prenuptial should have full and complete disclosure of assets and income of both parties and each party should be represented by different lawyers who are independent.
The validity of prenuptial agreements is closely scrutinized along the lines of

       (1) was their adequate disclosure of assets?,
       (2) were both parties represented by independent counsel?,
       (3) was the prenuptial agreement entered into voluntarily with no duress?

Every case is unique and all facts and circumstances need to be weighed carefully. It is the lawyer’s job to anticipate these unlikely events and recognize that they are possibilities. In that regard, it is the lawyer’s responsibility to plan for unlikely events (like remarriage) so as to ensure that they will not occur. If Liz and Frank do sign such an agreement not to alter their plan, the attorney should always keep a copy so that the children’s rights may be asserted if there are changes made. It is remarkable how little things like an agreement can protect so much.

       Contributed by
       Mark F. Winn, J.D., LL.M. in Estate Planning, who is a local tax, asset        protection and estate planning attorney.