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Pocatello Estate Planning and Second Marriages

In the course of helping clients for over 70 years complete their Pocatello estate planning we have assisted numerous clients who are in a second marriage. In a first marriage a married couple usually has a simple estate plan that takes care of a surviving spouse for as long as they live and then leaves the remainder of the estate to the children. When it comes to a second marriage, however, things are vastly different usually because both spouses have their own children to make distributions to. Additionally, one of both spouses will usually have their own assets that they are bringing into the second marriage.

Our award winning team of Pocatello estate planning attorneys has helped numerous clients with second marriages create a customized estate plan that provides not only for their spouse but also for their own children. Our Pocatello estate planning team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley who have each received the highest ratings possible through several legal ranking services. These ratings are based upon peer reviews and reviews from actual clients.

Through our experience we are confident that we can answer your questions and assist you with your estate planning if you are in a second marriage. To get you started, here are some specific ideas that you can think about that may help you when it comes to completing your estate planning if you are in a second marriage.

Marital Property Agreement

For many people in a second marriage the thing they are the most concerned about is making sure that their own assets end up in the hands of their own children. Without good estate planning advice there are instances where a spouse passes away and their property then goes to their surviving spouse who, upon their death, distributes his same property to their own children and not to their spouse’s children. One of the reasons this can happen in Pocatello is because of the community property laws.

Pocatello is a community property state. This means that if you are married all the property that you own is presumed to be community property unless there is some evidence showing that it is separate property. Community property is owned 1/2 by the husband and 1/2 by the wife. The reason this is important to understand is because when you die you are only able to give away property that you specifically own through your last will and testament. You cannot give away your spouse’s community property interest.

In a second marriage, to make sure that an individual’s property is classified as separate property and can then be given completely to the person’s own children, we often use a marital property agreement. A marital property agreement is a document that is signed by both spouses and that specifically identifies the property that is separate and owned by each individual spouse. There are some specific formalities and requirements that must be met for a marital property agreement to be valid. We assist our clients in completing a valid marital property agreement and also their own personal estate planning. By doing this we can assure that our clients property will pass to their own children upon their death and that there will not be any misunderstandings or mistakes made concerning distributions.

Set up a Trust

Another way that a person in a second marriage can assure that their property will end up in the hands of their own children is by setting up a trust. When a trust is created the individuals no longer own the property themselves. Rather, the property is transferred to the trust and the trust then becomes the owner of that property.

A trust is controlled by a trust document which specifically accomplishes several things. First it identifies who the trustee will be. The trustee is the individual who is charged with the responsibility of carrying out the instructions that are set forth in the trust document. Additionally, the trustee’s responsibility is to protect and preserve the property and assets that are contained in the trust. The second thing a trust document accomplishes is that it specifically identifies the property that it owns, and it provides instructions about how that property is transferred to beneficiaries. The final thing a trust document does is it identifies and names who the beneficiaries are.

By creating a trust, and transferring property into a trust, a person is able to maintain complete control over the distribution of their own property and money both while they are alive and upon their death. Additionally, while they are alive they can receive the benefit from the trust at the same time they are keeping their property and assets protected from being distributed without their consent. This is important because there may be an instance where an individual can no longer care for their own property or assets. As a result, a trust is a good option when there is a second marriage.

Give Gifts While You are Alive

An additional option that is available to you if you are in a second marriage is simply to give gifts of property and assets away two your own children while you are alive. So long as you are alive the law protects you and allows you to do whatever you would like to do with your own property. This means you are free to sell the property and go buy new property. Or alternatively you could give your property away as gifts to other individuals such as your own children.

Once a gift is given, you no longer own that property and no other individual can claim an interest in it. This is particularly true if the gift of property is given to your children while both you and your spouse are alive. The reason for this is that if your spouse claims an interest in the property, they would not allow the gift to be made. By participating in giving the gift, your spouse ratifies that this property can be given as a gift to your children.

There are other means and ways that an individual in a second marriage can protect their own property and also provide a plan for distributing that property to their own children upon their death. The ideas listed above are the most common but are not the only options available. If you have questions about how to distribute your property and you are in a second marriage, we would be happy to help you.

Enlist a Pocatello Estate Planning Attorney to Help You

Our team of Pocatello lawyers can help you with any of your estate planning needs including second marriage estate planning. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at We will answer your questions and help you solve your Pocatello Estate Planning problems.

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