If I die, I do not want my spouse to remarry until our children are grown. Is there anything I can do?
UPDATED: December 16, 2019
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Spouses cannot control the actions of the surviving spouse from the grave. In fact, most states will even strike down instructions placed in prenuptial agreements that give such instructions, given that the agreement becomes void upon your death. Keeping this in mind, you can still persuade your spouse to avoid remarrying through the use of conditions placed on the inheritance.
Certain states limit the amount of property that is considered a deceased spouse’s. For instance, some states automatically consider only half of the estate the deceased spouse’s. In these instances, your living spouse will have complete control and discretion over the other half.
If your spouse agrees with this decision, then you can design a contractual will. A contractual will designates the intent of both you and your spouse and specifies continued receipt of inheritance funds being conditional upon the spouse not remarrying. A will of this nature is very complex and requires extremely precise wording. If you and your spouse would like to create a contractual will, contact an estate planning attorney and schedule a consultation.
Another means of controlling assets after you are deceased is through a trust. If your spouse is in agreement with your wish of abstaining from remarriage until your children are grown, then the two of you can set up a living trust. Your assets are placed into the trust and controlled by a specified trustee before you die. If your spouse does not agree or you do not wish to communicate your intent to your spouse, you will most likely require a testamentary trust or a trust that is placed in your will and goes into effect when you die.
Estate planning is very complicated. Whether you are using a will or a trust, it is important that proper arrangements are made. When dealing with a special situation, such as a condition on your inheritance, it is always best to consult with a licensed estate planning attorney.