This is a question mostly related to estate planning for couples.  When couples plan their estate, the question of what happens after a first spouse dies becomes quite important.  For most couples, the surviving spouse wants to be able to change the terms of an estate plan.  Often, that may be related to preserving assets, or transferring assets to children or other beneficiaries prior to the surviving spouse’s death.  Many couples want to preserve the freedom and ability of a surviving spouse to make changes, but that is not always the case.

In the case of blended families, or people on their second marriage, allowing the surviving spouse to change an estate plan may be exactly the opposite of what the couple wants to have happen.  Blended families may want to keep their own estate plans intact, and not leave potential changes up to a surviving spouse.  Whether changes are wanted, or desired, for a surviving spouse, the terms of the trust usually dictate what can be done.  If you are looking to set up an estate plan, you need to carefully consider what provisions to include in a trust – can a surviving spouse make changes, or not?  If you want to know if changes are allowed in a current trust, the simplest answer is to read the trust and see what the trust agreement says can, or cannot be done.

 

Most Couples Want to Allow the Surviving Spouse to Change a Trust

Most couples that I meet are happy to allow their spouse to make changes to a trust after the first spouse has passed away.  These couples typically are both parents to the children, and know the spouse will do what is right for the family.  Allowing the surviving spouse to make changes to a trust provides a lot of flexibility for a surviving spouse.

I see changes made often as the surviving spouse closes in on the end of life.  As people age, they may find that there are more expenses that come up, like increased medical expenses for long term care.  There are planning options to preserve assets from a long term care facility, or to preserve assets from being picked up by Medicaid.  These asset protection type options frequently require a surviving spouse to change the form, or terms, of an estate plan.  Preserving this type of flexibility for a surviving spouse can be desirable for couples where one spouse passes away relatively sooner than the other surviving spouse.  Just because of how each spouse ages, I often see this happen to surviving widows.  The husband has passed away, yes the widow lives another 5, 10, or even 15 plus years longer.  The surviving widow is usually happy to have the necessary flexibility to change an estate plan to reflect a new reality of a life situation.

 

Not All Couples Value the Flexibility As Highly

Not all couples see the flexibility to change an estate plan as being a highly desirable trait.  Often, these types of couples are those who re-married later in life, possibly after the death of one spouse, or a divorce.  These couples are the type that came into a marriage later in life, and had significant assets, and adult, or nearly adult children.  The parties to such a marriage often want to have the assets they earned while the children were growing up.  They want to preserve the assets accumulated as the children grew up for their own family, not necessarily for a new spouse, or for the children or family of a new spouse.

In this case, a trust may say that assets can be used to care for the new spouse, with the provision that once the new spouse passes away, all remaining assets go back to the family of the first spouse to die.  That way, the new spouse is cared for, but assets aren’t available to the children or family of a new spouse.  The trust itself should say that assets are for the children of the first spouse, and that such a distribution cannot be changed by the surviving spouse.  In this case, a surviving spouse cannot change the trust, but that is desirable if that is what the spouses want to have happen.

 

You Want to Be Intentional About Who Can Change a Trust

Whether you want to provide your surviving spouse the ability to change a trust, or you don’t want to allow a surviving spouse to make changes is totally up to you, and depends mostly on your life situation and desired outcome.  There is no one right answer as to whether a spouse should be able to make changes to a trust, or whether the ability to change a trust should be curtailed.  You want to make sure whatever you do reflects what you want to have happen.  You may have a good idea of what you want, or you may not.  Either way, talking to an experienced estate planning attorney can help you set up your trust the way that works for what you want.  You can make an appointment to talk to an attorney by clicking the button below.