It may come to a surprise to most people to hear an estate planning attorney admit that most estate plans don’t work. In our experience, however, that is indeed the sad reality. They “don’t work” because they fail to meet the expectations of planner. That’s to say if the decedent could see what happened to their estate, they would be disappointed.
One simple yet potentially extreme example is the common scenario where the surviving spouse remarries. Some time ago I received a call from a distraught daughter of an estate who posed the common query “so when do we get mom & dad’s house”? Dad predeceased mom, who had in turn remarried and then passed away herself. Mom was survived by her new spouse, who was living in the house because he received her entire estate. If mom & dad had been questioned at the time of preparing their estate plan, at their death or after their death, they undoubtedly would have indicated that would like their estate to pass to their children when both of them had passed on rather than to a surviving new spouse. So what did they do wrong? How could they have prevented this unintended consequence?
The first deficiency that I regularly see in most estate plans, including the one cited above, is that they are not regularly updated. Because they are not kept current, they are deficient when they are needed most: at the time of death. Out of date plans never meet the expectations of the planning couple.
In addition, I rarely see an estate plan (drafted by another estate planning attorney of course) that adequately protects the estate from a future remarriage scenario. Because the likely scenario isn’t addressed, the surviving spouse is left alone in a precarious position after remarriage: they either give all the assets to the new spouse because after all “we’re in this together”, “we love each other” and “shouldn’t we share everything”? OR it places a significant strain on the marriage because the surviving spouse refuses to “share her stuff”. In either case, the plan fails because it doesn’t meet the expectations of the planning couple.
With careful planning, sufficient counseling, an understanding of family dynamics, and regular updates to the plan, unintended consequences can be ameliorated or eliminated completely. With careful planning, the estate can be protected from remarriage scenarios that are very common.