Jan L. Warner & Jan Collins
Question: When my wife and I were planning our estates several years ago, I did not expect that I would meet someone else, fall in love, and want to divorce my wife. As part of the plan, our estate-planning lawyer advised me and my wife to put most of our property in a trust because my wife had never handled money and because if one of us died, we wanted to make sure that the assets would go to our children rather than to a new spouse if the survivor remarried. Both of us were to get the income during our lives to supplement our retirements, then the survivor would get it, and, when the last of us died, the principal would go to our two grown children and their families. Now that we are separated, I want to get the assets out of the trust and divide them, but my wife wants to leave the trust like it is and to divide everything else 50-50. I need the money, but my divorce lawyer tells me that by the terms of the trust, if my wife and I donít jointly agree to terminate or change it, the terms of the trust canít be changed. I didn't know that when I signed it. Is there anything I can do now to salvage my assets?
Answer: While we believe there may have been other ways to accomplish your goals without irrevocably placing significant assets into a trust over which you apparently have no lifetime control, it looks to us that your estate-planning lawyer did just what you asked him to do Ė keep the assets away from a second spouse. The only difference is that the assets will be kept away from your second spouse while you are alive, not just when you die.
The trust you describe is an excellent way to accomplish a number of goals in normal situations, including: 1) Providing management of assets for a disinterested or incapable spouse, 2) Removing assets from the reach of a new partner of the surviving spouse, 3) Removing assets from estate tax exposure, and 4) Providing income during the life of the surviving spouse while controlling the ultimate disposition after the death of the surviving spouse.
Had you known that you would fall out of love with your wife, you may have chosen an alternative type of trust would have allowed you to retain control of your assets during your life. That trust could have been either unfunded or partially funded during your lifetime and, at your death, chosen assets could have been ďpoured overĒ into the trust from your will. In this way, you could have retained control, which has now become a very important issue.
Disruption of an estate plan due to divorce can be economically traumatic to both husband and wife. Now, a judge in divorce court will make the ultimate decision of how your estate will be planned. But it should open your eyes -- and our readers' eyes -- to the fact that you should never sign anything -- even if it was prepared by a lawyer -- without knowing all the consequences of your acts. Sometimes getting what you wish for isnít all itís cracked up to be