Page 48 - Senior Link Magazine Summer 2018- Online Magazine

HONORING SENIORS

Under Section 254.004 of the Texas Estates Code, a
contract may be created to make a will or testamentary BY LEE FRANKS
gift or not to revoke a will or testamentary gift by a
written agreement or by the will itself providing the
evidence and terms contract. But why would anyone do
so? commonly has to transfer all of his or her property, including his
or her separate property to the other spouse to maintain Medicaid
The other day, a married couple came into the office benefits. Medicaid calculates available resources for the couple
needing some basic estate planning, which includes without regard to who owns what, even if the couple has a pre-
at a bare minimum a will, financial power of attorney, nuptial agreement or a later marital agreement.
medical power of attorney, a release of private medical
information, and a directive to physicians and family Although a number of estate planning techniques may deal effectively
regarding end of life decisions. But this couple presented with these issues, a married couple might consider executing
a problem that, while a bit more extreme for them than contractual wills. Such wills must meet certain strict statutory and
others, is becoming all too familiar. Both had been common law requirements, but the key is that once the first spouse
married before, and both had children from the prior dies, the survivor cannot execute a different will. As with all complex
marriages; he had two girls, and she had one son. The legal instruments, any couple considering such an arrangement
kink in their case was that one of his kids had married should consult with a knowledgeable attorney before taking any steps
her kid. In fact, that is how they met. to execute such documents.
Consider the issues they face, assuming that all of their
property is owned together, i.e. it is all community
property. If their wills, in traditional ‘sweetheart’ fashion,
leave everything to each other and then to all of the kids,
each child receives an equal share upon the death of the
second to die. In that case, the married children enjoy
two thirds of the estate and the one daughter gets only
a third when the second of the couple passes. If instead
the husband leaves his estate to his girls, and the wife
leaves her estate to her boy, then ultimately the married
couple ends up with three-quarters of the combined
estate, and the remaining girl makes do with a fourth.
And what happens if the kids divorce? What happens
if the kids divorce after one of the parents dies? What if
both of the parents have separate property? It gets even
worse if one parent brought a lot of separate property to
the marriage and the other brought none.

It takes little imagination to see that complications can
occur even without the second generation marrying one
another. The children of one spouse may have a distant
or even hostile relationship with the other spouse, and
the two sets of children may begin to worry about their
future shares of their respective parents’ estates.
A related complication may arise in the context of long
term care. Unless there is sufficient wealth to pay for
such care, one of them may need to apply for Medicaid
to pay for a nursing home stay. Assuming the couple
has more than a house and one car, the sick spouse

48 Lubbock Senior Link