Bar News - March 22, 2017
Elder, Estate Planning & Probate Law: Remarried Baby Boomers Require Custom Estate Plans
By: Justin R. Paré
Attorneys whose practice involves estate planning or probate administration may have noticed a client demographic that has quickly developed over the past few years – remarried baby boomers.
The baby boomers are now between the ages of 53 and 71, an age range at which clients begin taking estate planning more seriously, revising their plans or establishing one for the first time. A significant trait of this baby boomer generation, in addition to their wealth accumulation and longevity compared to previous generations, is their high rates of divorce and remarriage, especially later in life. The Pew Research Center places the percentage of baby boomers that have remarried after divorce or the death of a spouse at 67 percent. The baby-boomer generation has consistently had a divorce rate of about 50 percent, and about two-thirds of those will remarry.
Remarried baby boomers tend to have adult children from the previous marriage. We need to pay greater attention to the basic estate planning needs and desires of this demographic. There are two main reasons why in New Hampshire: homestead rights (RSA 480) and spousal elective share (RSA 560:10).
In New Hampshire, RSA 480 creates a statutory right for every person of $120,000 in their homestead. This includes the owner and the spouse, whether the property deed is in one or both of their names. This right is for the duration of their lives, and the right of the spouse cannot be devised (RSA 480:3-a). It’s understood that a married couple together retains a $240,000 equity stake in their homestead, and that the homestead right is not waived by transferring the property into a revocable trust (RSA 480.9). Some practitioners mistakenly classify the homestead right as only a debtor’s right against attachment, but it is also a surviving spouse’s right within probate; to elect a spousal share or waiver, the surviving spouse must waive their homestead rights (RSA 560:10).
New Hampshire’s right of election for a spousal share or “waiver by surviving spouse” under RSA 560:10 permits the surviving spouse to waive their share under the deceased spouse’s will, as well as their homestead right, and to elect a statutory share. For example, in the event of surviving children, from the previous or current marriage, the spousal elective share is one-third of the deceased’s personal and real property. If the deceased spouse’s property had been transferred into a trust, it will only be excluded from the waiver if it can be shown that the spouse did not use the trust for the purposes of nullifying the surviving spousal waiver right (Hanke v. Hanke, NH, 1983).
Many first-time married couples express their estate planning wishes as simply, “everything to my spouse, or if they die before me, then equally to my kids.” In this case, we rarely consider the ramifications of the homestead rights or the spousal waiver, nor do we have to, because the entire estate (or a very large portion of it) is being left to the surviving spouse. However, remarried baby boomers with children from the previous marriages often request that their estates be left to their respective children from their previous marriage, not to their spouses. This wish is most often agreed to by both spouses. The probate issue brews in that many of these couples are of modest means, one spouse having brought the marital home to the marriage, and they want a simple, basic estate plan that doesn’t cost much.
As estate planners, we have various tools, such as postnuptial agreements and separate trusts, to meet clients’ needs, but all too often they are more complicated and cost more than the clients are willing entertain. Experience has shown that there are many basic estate plans out there that were drafted for these types of clients that either did not take into consideration the homestead or spousal waiver rights, or the clients’ flat-out refusal to heed legal advice, because they claim they would honor each other’s wishes upon death and not claim a surviving spousal right.
Once the probate process eventually occurs, it’s too late – the tune changes and you have stepfamilies at battle. Pay special attention to the surviving spousal rights, depending on the specifics of the marital estate, and advise accordingly. It will pay emotional dividends in the long run, to incur the cost of a more robust estate plan, or to at least devise the equivalent of the spousal waiver within the basic plan.
Justin Paré is a solo attorney in Londonderry, NH. He concentrates his practice in estate planning and probate administration and is a member of the NH Bar Trust & Estate Law Section and the ABA Section of Real Property, Trust and Estate Law. Justin can be contacted via www.justinpare.com.