I often meet with married couples in second marriages. Each spouse frequently has children from a first marriage. The couple may have been married to each other for ten years or more. Sometimes their families get along well, sometimes they do not.

In most instances, these clients want to have mutual Wills drafted. Mutual Wills are Wills that mirror one another—the husband’s Will leaves everything to the wife and the wife’s Will leaves everything to the husband. In a first marriage situation, the couple names their mutual children as their remainder beneficiaries; in other words, the couple’s children will ultimately receive the couple’s estate when both members of the couple pass away.

The issue that is presented with a second marriage is that each spouse has their own children. The couple could have Wills drafted wherein they both name all the children from both marriages as remainder beneficiaries, but the second-to-die spouse could always change her Will to disinherit the first-to-die spouse’s children.

In other words, assume that Mr. and Mrs. Smith are married. The marriage is a second marriage. Mr. Smith has three children from his first marriage. His first wife passed away. Mrs. Smith has two children from her first marriage. Her first husband passed away. Assume further that the Smiths have Wills that leave everything to each other then to the five children (three from his first marriage and two from her first marriage).

If Mr. Smith were to die, everything would pass to Mrs. Smith. Mrs. Smith is now free to change the terms of her Will. She could disinherit Mr. Smith’s children and leave everything to her two children.

The solution for this issue is a trust. In order to ensure—or better ensure—that Mr. Smith’s children receive the remainder of his estate upon the passing of Mrs. Smith, Mr. Smith would have to draft a trust in his Will for Mrs. Smith’s benefit. Upon Mrs. Smith’s passing, Mr. Smith’s children would be named as remainder beneficiaries of the trust. Mrs. Smith would have a similar trust in her Will for the ultimate benefit of her children.

In order for the trusts to work, the Smiths’ assets would have to be divided so that Mr. Smith held title to his assets in his name and Mrs. Smith held title to her assets in her name. Any assets that are jointly held will pass to the surviving spouse automatically, irrespective of what the Wills say. Also, the Smiths will have to be mindful of the beneficiaries designations that they place on assets. If Mr. Smith names Mrs. Smith as the beneficiary of his IRA, then Mrs. Smith will inherit that IRA outright and free of the trust in Mr. Smith’s Will.

By drafting these trusts into their Wills and by having their assets titled appropriately, the Smiths can better ensure that each of their respective children will ultimately receive some benefit from their estate. I say better ensure because even a trust is not foolproof.

For instance, if Mr. Smith names Mrs. Smith as the sole trustee of the trust in his Will for her benefit, Mrs. Smith might substantially deplete the trust before she dies, living off the assets in the trust instead of living off the money she has. To prevent this, either a co-trustee would have to be named with Mrs. Smith—for instance, one of Mr. Smith’s children—or one of his children would have to be named as sole trustee. Of course, that all sounds nice in theory, but Mrs. Smith probably won’t like that idea at all, and she’ll (or he’ll, with respect to Mrs. Smith’s Will) convince him not to name someone else as trustee or co-trustee.

Spouses, even spouses in second marriages, don’t want to offend their spouse, and they want to provide for their spouses. So, in most cases, after I present the options, the couple will decide to have simple Mutual Wills drafted naming all the children as remainder beneficiaries. They’ll tell me that they trust their spouse not to change his/her Will.