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In a trust, are beneficiaries protected after one spouse dies?

Los Angeles, CA |
Filed under: Trust assets

My spouse and I have two biological adult children each from previous marriages. When one spouse dies, how does the trust protect the surviving beneficiaries of the deceased spouses children? Can the surviving spouse deplete all the assets without permission from the beneficiaries?

Attorney Answers 4


The answer depends on how the trust is structured and who the trustee is. Estate planning for blended families poses unique issues. Too many and too complex to deal with on this board.

You need to sit down with an estate planning attorney and go over all your assets, all your goals and any specific concerns.

I can help as can several others who I have seen post on these boards who are probably close to you.

The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

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Attorney Shultz is correct. Avvo is great for short, precise questions. However, in any blended family, there are complex issues which require an experienced estate planning attorney to work through. Think of your matter like a Rubik's Cube. Attorneys on Avvo might be able to give you a way to get one side of the cube one color, but there's no way we can solve the whole cube for you. For that, you need a very good lawyer. good luck to you.

This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.

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You will need to create a trust that accomplishes what you want. You can create a trust that upon the death of the first spouse, the trust estate can be split into two trusts, typically an "A" Trust (Survivor's Trust) and a "B" Trust (Decedent's Trust / Bypass Trust / Exemption Trust, etc.) I can't go into all of the permutations, but the concept is that the deceased spouse can go to their grave knowing that their separate property, and their share of the community property, can be held for the benefit of the surviving spouse while they are alive, but then go to the beneficiaries that they wish after the surviving spouse passes. But, there are many other options. You should definitely contact a knowledgeable estate planning attorney. The good news is that your concerns can be covered.

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I agree with the other attorneys. I'm just going to simplify it a bit.

A good estate planning attorney can structure it so that the right people get the right property/income/support at the right time. You just need to meet with the attorney and tell him/her what you want to happen.

In a blended family situation, the general rule is to give the surviving spouse as much as necessary while giving the children as much as possible. That usually involves making it so that part of the trust is available for the survivor's needs, with everything else going to the kids at the end of the day.

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