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Estate Planning in Second-Marriage Situations Can Be Tricky

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We frequently see clients in second (or even third or fourth) marriages, with children from prior relationships. When we discuss how their assets should be distributed, they can usually give us a quick summary. Their plans vary, but they often fit into one of these models:

  • Maybe the couple have kept their assets mostly separate, and on the first death they expect that the deceased spouse’s assets will pass to his or her children.
  • Sometimes they couple have commingled assets, and they intend to leave everything to the surviving spouse — with no restriction on how the survivor will handle the funds after the first death.
  • Perhaps the couple has commingled some assets and kept others separate, and they want the surviving spouse to have fairly free access to the combined assets during the rest of his or her life — with everything to go to some combination of both sets of children on the second death.
  • Once in a while (especially in long-term second marriages) the couple intends to leave the surviving spouse with almost unlimited access to all funds — but each wants to constrain the other to leave all remaining assets to both sets of children on the second death.

Sometimes grandchildren or others friends or family members fit into the couple’s plan, but some variation of these options is usually under consideration. Of course, one of the principal problems is that, while the couple may have thought about their simultaneous deaths, or deaths in fairly close order, they might not have given much thought to the possibility that the surviving spouse might live ten, or twenty, or thirty, years after the first spouse’s death. Family dynamics and relationships can change pretty dramatically in such a case.

That scenario was involved in a recent case out of Indiana. James and Fiona Masterson (not their real names) were married in 1998. James had a son from his first marriage (his first wife had died shortly before he and Fiona were married). Fiona had two children, but wanted instead to leave her portion of any estate to her granddaughter.

James and Fiona signed identical wills shortly after their marriage — and they also signed an agreement not to change those wills. The agreement provided that each promised “not to revoke or alter in any way, for any reason, his or her will executed  pursuant to this agreement.” Those were the wills in place when James died a decade later.

Under the terms of James’ will, everything passed to Fiona. Her will, in turn, left half of everything to James’ son David, and half to her own granddaughter Gillian.

Over the ensuing years, Fiona and her stepson David largely lost contact with one another. About two years after her husband’s death, Fiona signed a new will — this one left everything equally to her two children (disinheriting both David and Gillian). Then Fiona died in 2012.

Because they had lost touch, David did not even know that Fiona had died until months after the fact. Nor did he know that her son had introduced her new will to probate and was in the process of dividing her estate between her two children.

Within a few days of learning about Fiona’s death and the probate of her new will, he filed a claim against the estate and Fiona’s two children. They objected that the claim was untimely under state probate law, and that David should take nothing from the estate. The probate court agreed and dismissed David’s lawsuit.

The Indiana Supreme Court reversed that dismissal and sent the matter back for further hearings. According to the state’s high court decision, the question was whether Fiona’s children knew or should have known about the agreement not to change her earlier will. If they did know (or should have known), then they were required to give actual notice to David — which would excuse his late filing. Markey v. Markey, August 4, 2015.

The significance of James and Fiona’s story is less about the legal technicalities than about planning.
After all, contracts not to change a will are valid in most states (including Arizona, which has a statute detailing what such contracts should look like). Having such an agreement, however, often begs the question — how will it be enforced? What about lifetime gifts, or establishment of a living trust?

If the couple really did want to constrain the surviving spouse, how might they have done a better job? Typically, we counsel married couples that to control the ultimate disposition they really should be thinking about a trust arrangement, and name someone other than the surviving spouse as trustee (or name a co-trustee). This option is more cumbersome (and often more expensive) but will have a better chance of leading to the desired result.

We also counsel couples to try to imagine not only what the domestic situation might look like shortly after the death of one spouse, but also what it might look like a decade or two later. In James and Fiona’s situation, for instance, they might not have realistically considered the possibility that Fiona and David would have little contact in the two decades after James’ death. They apparently did not think about how Fiona’s relationship with her children and granddaughter might change during that time, either.

There is no easy answer to a problem that occurs with increasing frequency as familiar family relationships change over time. Clients must realistically review their wishes — as well as the strength of those wishes — and think about alternatives to accomplish shared goals.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.