Few couples realize that when the first spouse to die leaves his or her estate outright to the surviving spouse, without more, the surviving spouse can always change the ultimate beneficiaries of the couple’s estate. Such changes may be intentional or unintentional, and the children of the first to die, or even the children of both spouses, may be disinherited. Traditional estate planning for a married couple who desire to assure an ultimate inheritance by contingent beneficiaries (such as children) on the second death usually involves creating an irrevocable trust on the first death for the benefit of the surviving spouse. On the death of the surviving spouse, the remaining trust assets are distributed to the contingent beneficiaries of the first to die.

The Contract to Will is frequently a superior planning technique in protecting the rights of contingent beneficiaries when compared to the credit shelter trust or marital trust. If such trust planning is still desirable, the Contract to Will can significantly augment such planning to properly provide for contingent beneficiaries.

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