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Planning for the surviving spouse

Posted by Saidin M. Hernandez | Mar 31, 2023 | 0 Comments

Most of the couples I meet want the assets to pass to the surviving spouse at the first death. This usually makes sense, their wealth has been accumulated through the efforts of both spouses and it seems only fair that if one of them dies, the survivor takes all. In Florida, this is very easy to accomplish by holding property such as bank accounts and real estate jointly i.e. tenancy by the entirities or with rights of survivorship. In fact, it completely avoids probate and most of the time all you need to re-title the account is a certified death certificate. Easy peasy.

However, once you delve into the details it might not be so simple. If you have a modern family, i.e. second marriage, kids from two marriages, etc. things can get a little bit complicated. This could especially be an issue where one spouse is significantly wealthier than the other or either received a large inheritance or property settlement from the previous marital relationship. Another problematic situation is where the surviving spouse is not a US citizen—in order to qualify for the unlimited marital deduction—the surviving spouse must be a US citizen.

Some of the solutions that I have implemented include:

1. Use of trusts allowing the surviving spouse access to the funds during their lifetimes, but at their death the funds are split between children from both marriages

2. Use a QDOT (Qualified Domestic Trust) for surviving spouses that are not US citizens

3. Clearly define who is responsible for paying and making the elections for portability in the will or the trust (or both)

4. Draft separate trusts instead of a joint trust to make better use of the unified credit amount

Finally, it is imperative to spend the time with the client and explain all of these issues and what are some of the possible solutions. No two clients are the same.

About the Author

Saidin M. Hernandez

Principal Attorney


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