It’s a common scenario- a couple gets married, each having children from a prior relationship. They each set up their Wills to provide for the surviving spouse and then for all their children, collectively, when they are both gone. The understanding is that when one dies, the survivor will not modify or revoke the survivor’s Will in a way that diminishes the inheritance of the children of the spouse who dies first.
But is that understanding legally enforceable with nothing more? The answer under New Jersey law is clearly, “no.” Under New Jersey law, a so-called “contract to make a Will,” or not to revoke a Will, can be established only by (1) the provisions of the Will itself, or (2) an express reference in a Will to the contract and evidence proving the terms of that contract, or (3) a separate writing signed by the Decedent that evidences the contract.
But wait a minute. Isn’t that unfair if the spouse who died first had executed a Will in reliance on the surviving spouse’s promise that his or her Will would not change, and the surviving spouse does, in fact, change that Will? Yes, it’s unfair, but unfortunately that doesn’t matter. In fact, the applicable statute expressly states that the execution of so-called “joint” or “mutual” wills does not create a presumption of a contract not to revoke the Will or Wills.
Even if a contract to make a Will is in writing and enforceable, it may not be a panacea. For example, a surviving spouse may be able to effectively side-step the contract by making lifetime gifts to only his or her children, or dispose of assets at death via transfer-on-death or pay-on-death designation. A better approach might be to use a trust.
Under this approach, each spouse would leave all the spouse’s assets to a trust. The surviving spouse would be the beneficiary of the trust during his or her lifetime, normally receiving all the income generated by the trust assets and as much of the underlying principal as is necessary, considering the survivor’s own resources, to maintain the spouse’s accustomed manner of living. The surviving spouse and one or more of the deceased spouse’s children would typically be trustees. The trust would provide that when the surviving spouse dies, the assets remaining in the trust pass to the children of the spouse who died first.
As is the case with many effective estate-planning strategies, implementing the appropriate documents is not the end of the story. Assets must be titled to ensure that they are actually distributed under the Will, and therefore into the trust, rather than outright to the surviving spouse via joint ownership or beneficiary designation. Even then, a trust may prove less than ideal if it means forcing children to wait until the death of the surviving spouse to receive their inheritance. In those cases, it can be helpful to identify specific assets that can be distributed directly to children, such as life insurance proceeds or IRAs, while ensuring that the surviving spouse can be maintained in his or her accustomed manner of living.
Beneficiaries in these situations need to understand that promises of an inheritance, no matter what the circumstances, generally are not enforceable. Therefore, they should encourage loved ones to educate themselves and do the proper planning to ensure that their wishes are carried out.
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