Updated: Nov 6
Dear Mr. Premack: My spouse and I have a Revocable Living Trust. The attorney who wrote it for us asked if we wanted the trust terms to state that when one of us dies the trust is unchangeable, meaning the survivor will not be able to change the distribution. We had argued about it, but decided the survivor should have power to change the trust when one of us has died. My husband has one son from his first marriage, and I have two from my first marriage. If I die first, can my husband decide to eliminate all benefits for my two children? – C.Y.
Any Living Trust sets up three important positions: the Grantors, the Trustees, and the Beneficiaries. The Grantors are the people who create the Trust, decide what it should accomplish, appoint the Trustees and Beneficiaries, have the right to transfer assets into and out of the Trust, and have the right to modify or revoke the trust.
As such, the Grantors (in this instance, you and your husband) are signing a contract (the Trust) which sets out the long-term plan for your assets and your heirs. Almost universally, a Living Trust Agreement will state that the Grantors must act jointly if they desire to modify the trust while they are both alive. Both of you must agree and sign to change any of the Trust’s goals or to add or drop a Beneficiary while you are both alive and well.
An issue arises, however, if a) one Grantor becomes incapacitated, or b) one Grantor dies. The Trust Agreement should specify whether the other Grantor still has authority to modify or revoke the Trust. Usually, when the Grantors have been in just one marriage and all the children are from that marriage, there are good reasons to allow the well/surviving Grantor to act unilaterally. If a circumstance changes, that well/surviving Grantor is likely to protect the Beneficiaries because they are that person’s kids, too.
On the other hand, in a second marriage with children from both sides, there may be less motivation to protect the children of the deceased spouse. As in your situation, if you die first and your husband has power to change the Trust as surviving Grantor, then yes when you signed the Trust you agreed in the contract to allow him to write out your children. The same situation could happen after a first marriage as well if the surviving spouse decides to remarry. Then the survivor has a potential conflict of interest between the children and the new spouse, with laws and the power to favor the new spouse over the kids.
Due to that risk, it is sometimes wise to include two (among other protection) provisions into a Living Trust Agreement. First, a clause that says if either Grantor is disabled or dies, the surviving Grantor no longer has the right to amend or revoke the Trust. Second, a clause that says that when one Grantor dies the Trust assets are split into two shares, half for each side. One half becomes irrevocable and non-amendable as a benefit for the surviving spouse then, without opportunity for change, for the children of both spouses after both Grantors die. The other half remains revocable and amendable, allowing the surviving spouse to change the goals for that half if new circumstances arise, including leaving that half to only the survivor’s children, to a new spouse or to anyone else.
You should have a long talk with your spouse about the terms of your Living Trust. If you still feel your children will be at risk of losing their inheritance, talk about an amendment to the lawyer who wrote your Trust. The ultimate best outcome is that you and your spouse agree on a modified plan that motivates the protections on both sides and eliminates the risks. The ultimate worst outcome is that you cannot agree and have to dissolve the Living Trust then rearrange your assets by agreement or by divorce.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.
First published on 2/9/2021.