Planning when one or both spouses have been married in the past can also present challenges. For instance, suppose Mike and Helen, a married couple with no children, sign wills or trusts leaving their assets to each other outright. If Mike dies first, Helen will inherit everything. When Helen dies, who will get assets which passed from Mike? Helen could make a new will or trust, but if she doesn’t, all of Mike’s assets may end up passing to Helen’s relatives. Mike’s relatives would be left with nothing. The same is true for Helen’s relatives if she happened to die first. Of course, Mike and Helen could agree that the surviving spouse will sign a new will that’s fair to both families, but the survivor could change his or her mind if he or she remarries, if there is a “falling out” with the in-laws, or if he or she simply doesn’t get around to updating his or her will or trust. If Mike or Helen’s family attempts to enforce a written agreement to make a will or trust, it will result in costly, protracted litigation.
A better approach might be for each to provide a trust to benefit the surviving spouse during his or her lifetime, and then pass assets which were not needed by the survivor (for the surviving spouse’s health, education, maintenance and support) to beneficiaries chosen by the first spouse to die.