If my spouse remarries after my death, will my kids inherit from me?

Much of the time, the Wills made by husbands and wives are mirrors of each other, in the sense that the spouses leave everything to each other, then follow the same distribution for when both of them are gone. The most common plan for when both parents have passed on is to leave most or all of the estate to their children.

Sometimes a spouse in this situation is shocked or dismayed to learn that should he or she pass away, there is absolutely nothing stopping the surviving spouse from re-marrying and leaving everything to the new spouse. The concern is that the new spouse will not be as interested in the children of the original couple, and the children will never inherit the money.

I can see why this thought bothers people. Nobody wants to work and save and invest for years, thinking that the efforts will benefit his/her spouse and kids, just to find out that some other person - and perhaps a completely different set of children - will reap the benefit instead.

Spouses need to understand that when they make mirror Wills as I've described here, the spouse can legally change his or her own Will if he/she wants to. There is a different Wills arrangement that does legally bind the spouses not to change the Wills if widowed; those Wills are known as mutual Wills. Unfortunately the information available is confusing because many advisors and journalists erroneously refer to mirror Wills as mutual Wills. A mutual Will contains a clause that specifically says that neither the husband nor the wife will change the Will should he or she become widowed. It creates a legal obligation on both of them not to change the Wills. Your Will won't have that clause unless you specifically direct your lawyer to include it.

Mutual Wills are rare compared to mirror Wills. I rarely prepare mutual Wills for clients because I feel that doing so doesn't allow for unforeseen but reasonable events in the future. They fit clients in certain circumstances, of course, but are not widely applicable.

There are some other ideas that could be integrated into your estate plan if you are concerned about your spouse re-marrying and not leaving the estate to the children. While many spouses say that they can't even imagine that happening, they need to realize that while it's unimaginable right now while the spouse is alive and they are a family unit, things would be very different without the spouse alive.

One idea is to leave some of all of the estate in a spousal trust that would hold the estate for the lifetime of the surviving spouse. A trust like this would allow for money for the spouse to live on, while protecting the capital intact. On the death of the surviving spouse, the capital would be divided among the children. If you want to explore using trusts, make sure you understand the tax consequences.

Another idea is to leave part of your estate directly to your children, and part to your spouse. If your children are underage, their shares would be held in trust for them until the age you specifiy for inheritance. This would mean that only part of your estate is at risk to be transferred to anyone who married your spouse in the future.

A further idea is to transfer assets to your children while you are alive. This of course depends on whether you need those assets yourself, but it is an idea that is workable for some families.

If you own a business that you want to pass to your children one day, make sure you begin your succession planning process early on to get some plans into place.

I always encourage people to be very open with me about their concerns, their fears and their goals when we are talking about estate planning. Usually there are ways of addressing your concerns, but only if you tell your lawyer what those concerns are.