"I am 64 and my husband is 70. We have been married 5 years. I have no children and he has one son. Prior to our marriage, I accumulated my retirement savings. He has none. I also recently inherited a considerable sum from my mother. If I died first, I would want my money to go to my husband to support him for the rest of his life. However, I would want the remainder, upon his death, to go to my brothers, nieces and nephews — not his son. How can I make sure this happens?"

Answer:  There are two ways to accomplish your goal.  But, if I were your attorney, I would not make any recommendations until I had a full understanding of the structure of your estate, your husband’s estate, how your retirement funds are held, and whether or not you have a taxable estate.  In Massachusetts, an estate over the threshold of $1M is taxable, and so all of this information would affect my response to you.  Another important question would be if you or your husband have any health issues at this time.  If there are no health issues, then I might recommend an Irrevocable Income only trust for some or all of the funds–again depending on your entire estate structure. This kind of trust would entitle you to income only with the remaining principal to go to your brothers, sisters, etc, on your death.  In the alternative, your attorney could draft a will for you with a testamentary trust.  Your husband would receive the income but not the principal.  The principal would go to your family.  The best advice is that you should consult with an attorney in your state on these matters and have him or her create a comprehensive plan for you and your husband.  I am a Massachusetts estate and elder law attorney, and the law may be different in your neck of the woods.

To locate attorneys in your state who can help you with this elder care matter, I would recommend that you search the ElderCare Matters listing of experts at www.ElderCareMatters.com/statechapters.htm.

Susana Lannik, Attorney at Law
Newton, MA  02458
Member of the national ElderCare Matters Alliance, Massachusetts chapter

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