To start, let’s be clear, not everyone has an idiot son-in-law (“Spike”) or a horrible daughter-in-law. In fact, most of our in-laws are fantastic people. However, there are the outliers. These are the people that can be incredibly problematic for some families as they contemplate planning their financial and medical affairs. It is this “Spike” that we will focus on in this month’s installment of The Ten Biggest Problems with Your Estate Plan and How to Fix Them.
Problem
When I first sit down with potential clients, I ask them two questions regarding their estate: 1) What do you want to make sure happens? and 2) What do you want to make sure doesn’t happen? The answer to the second question is often, “I want to make sure my stuff stays in my family.” Enter Spike. He is the predatory miscreant that only married your daughter to get at your stuff. Now, as previously stated, this is often an emotional exaggeration driven by fear and plenty of made-for-TV movies on the Hallmark Channel. With that being said, there are still legitimate concerns to address, even in the best son-in-law/daughter-in-law situations.
First, regardless of how good your child’s current relationship with their spouse is, contemporary statistics indicate that more than 50% (and rising) of married couples divorce. When, not if, this happens for one of your children, do you want to have safeguards in place to make certain that the assets you leave your child are not part of the assets subject to division in the divorce? Of course, you do! This can be accomplished in various ways with different levels of effectiveness. The most consistently effective protection for your child is to make certain that your estate plan uses a Revocable Living Trust that provides the child with a ‘subtrust’ when you pass away. This allows the child access to their inheritance while simultaneously keeping it separate from the marital assets. In short, you are providing your child with a strongbox that only they (or your chosen Trustee) has the key to enter.
Also, let’s contemplate the possibility that your child does not get a divorce, but instead stays in a less-than-fantastic marriage for whatever period of time, for whatever reason. During this time, Spike demonstrates a propensity to purchase expensive toys or spend money in excess of their standard of living on trips and experiences. Spike can bankrupt them personally; however, you protected your child’s inheritance from his gluttonous spending by keeping it in a subtrust share.
Solution
The bottom line is that if you allow your child to take an inheritance in an ‘outright’ fashion (meaning the assets leave the estate/trust and vest in the name of your son/daughter), then whatever you left to them is subject to divorce, bankruptcy, and/or lawsuit. By using a Revocable Living Trust as your planning vehicle of choice, you can encase your child’s inheritance in the armor of a subtrust upon your death and protect your hard-earned assets from the “Spikes” of the world and other predatory activities beyond your or your child’s control.
You have a universe of choices available to you when you plan your estate. For the protection of yourself and your family, be sure to consult your JGB attorney to make certain you are maximizing all of your choices.
Our next installment will focus on Problem #9: Your Situation Is Totally Different.
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About the Author:
In January of 2004, Jeremy moved from Boston to the gentler climate of Virginia. He lives in the Richmond, Virginia area and has two beautiful daughters and a strapping young son. Having grown up on Cape Cod, Massachusetts, Jeremy enjoys spending his free time outdoors by the water where he can often be found SCUBA diving, saltwater fishing and shooting Skeet/Trap.