February 2010 Archives

Estate Planning for Second Marriages - Thoughtfulness Required

February 22, 2010,

by Michael Ettinger, Esq.
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With people living much longer than in the past, the frequency of remarriage is increasing, even in later years. This latter phenomenon is raising a host of elder law estate planning issues. On the other hand, we are also seeing with increasing frequency the blended family with "his, hers and theirs" children, creating another set of potential pitfalls.

Most of these estate planning issues can be resolved with thoughtfulness on the part of the clients and the compassionate guidance of their estate planning attorney.

Here are some of the key issues and potential solutions for planning for second marriages.

1. The duration of the second (or third) marriage and also the relative financial positions of the parties. Recently a client came to see us whose husband has early Alzheimer's. His IRA named his children as beneficiaries many years ago. The couple have now been married for thirty-five years and the wife would be left destitute without her husband's IRA. Hopefully, husband has the capacity to understand the situation and make a change. One option: husband may leave his IRA to his wife on the condition that she name his children as the beneficiary on her death.

2. In our experience, a great deal of thought should be given to what the children of the first marriage will receive should their parent be the first of the couple to die. By looking at the matter from the heirs' point of view, we can often provide an outright bequest of a portion of the estate, or name them as beneficiaries on an insurance policy, so that they feel loved and cared for by their parent and not relegated to an inferior position. This is especially important if the parent has married a much younger spouse. Needless to say, this will also greatly affect their future relationship with the surviving step-parent. Thoughtlessness is this area alone has led to a lifetime of hurt and anguish for many a child of a remarried parent. Wills, at the very least, should provide recognition to the children of the prior marriage.

3. The use of living trusts is often an essential tool where the surviving spouse needs the majority of the combined assets to survive on. Here, the issue becomes how to guarantee that the predeceased spouse's children will receive their fair share on the surviving spouse's death. Typically, we set up one trust if the estate is not subject to estate taxes, or two trusts if needed to reduce or eliminate estate taxes, and make both spouses co-trustees of the trusts. The trusts provide for equal distribution among his and her families after the second death. What prevents the surviving spouse from raiding the trust and giving everything to his or her own children? Generally, we recommend a professional co-trustee to serve with the surviving spouse, so as to prevent this occurrence.

4. The estate planner must consider any prenuptial agreement as well as any obligations to children arising out of a divorce decree. These may need to be changed after a number of years to reflect the current situation which may have been greatly altered. For example, after many years one spouse will often wish to provide life rights in the marital home to the other, should he or she be the survivor, something expressly forbidden in the prenuptial agreement drawn up many years earlier.

5. Long-term care obligations have proven to be intimidating to many couples later in life. Even a prenuptial agreement providing that the spouses' assets are separate and that they have no financial obligations to each other is not binding vis-a-vis Medicaid. Medicaid considers the combined assets of the married couple as being available for the care of the ill spouse, regardless of whose name they are in. Hence, the need, amount and availability of long-term care insurance is often a factor to be considered in second marriages. Medicaid planning as well as setting up a Medicaid Asset Protection Trust for one or both spouses must also be considered in this context.

6. For wealthier couples, one spouse may wish to take care of his or her less well off spouse for their lifetime but then have the unused funds revert to their biological family. Here a QTIP (Qualified Terminable Interest in Property) trust may be set up for the surviving spouse, which will (a) provide a lifetime income, (b) delay, reduce or often eliminate estate taxes, and (c) protect the inheritance for the children of the predeceased spouse.

As you can see, with a little thoughtfulness on your part and the help of an experienced elder law estate planning attorney, often gleaned from hundreds of cases, second marriage couples have the ability to "do the right thing" for all concerned and avoid acrimony or even litigation in estate administration and probate.

Converting IRA to Roth -- Wisdom of Solomon Required

February 8, 2010,

by Michael Ettinger, Esq.
497302.gifThere have been numerous articles written on the wisdom of converting your IRA, or a portion of it, to a Roth IRA. In 2010, the income limit on converting, previously $100,000 per year, has been eliminated allowing many more taxpayers this option.

Traditional IRA's offer a tax deduction on the contribution but tax the distribution, required to start after age 70 1/2. Roths offer no deduction on contributions but the distributions are tax-free (after a five year holding period). Unlike a traditional IRA, with a Roth there is no mandatory age to take required minimum distributions.

Should you wish to convert, you will have to pay the taxes on the converted amount now. For 2010 conversions only, you may defer the taxes due as follows: 50% in 2011 (payable April 15, 2012, or until October 15, 2012, if on extension) and 50% in 2012 (payable as late as October 15, 2013). Your tax advisor can help you determine whether you should make quarterly estimated tax payments.

Kiplinger's says that "It's worthwhile to make the switch only if you don't have to tap the IRA for cash to pay the taxes." Not everyone agrees, as discussed below. But if you convert and don't have the funds to pay the taxes later, you are allowed to undo the conversion until October 15th of the following year. This is also important if your portfolio has fallen, since you may not want to pay tax on a $100,000 conversion if the value of the IRA has dropped to $75,000.

Many advisors feel that you should Rothify at least some of your IRA in the belief that tax rates today are lower than they will be in the future. Trillion dollar deficits tend to support this thinking.

On the other hand, you might be in a different situation if you are now an income earner and your tax bracket will fall when you retire.

Clients like the Roth for its flexibility. With no required minimum distribution, you do not have to pay taxes on money you may not need, but are required to take with a traditional IRA.

By setting up multiple Roth IRA's, or by converting in a series of steps, say $50,000 now and $50,000 in four months, you will be in a better position to undo some of your conversions should your portfolio fall or you are unable for any reason to pay all of the tax due.

For New Yorkers, if you are moving in the foreseeable future to a state with no income tax, such as Florida, you may want to wait until you move to convert. If you are collecting Social Security you may want to ask your tax advisor whether the conversion will cause more of it to become taxable. Remember, taxes on Social Security, as well as your Medicare premium rates, are calculated on your income. If you are older than 70 1/2, you must take your required minimum distribution before converting, which may also affect your tax bracket.

Whereas Kiplinger's says don't convert if you have to pay the taxes from your IRA, the Wall Street Journal disagrees. They found, after running the numbers, that it may pay to convert even if you have to pay the taxes with money inside the IRA. The reasoning is that even though the Roth will be smaller after the taxes are paid, by not having to take withdrawals, some clients will be able to keep more of their Social Security tax-free. By keeping more of their Social Security, they will have to take less from their Roth, allowing it to grow more. In one example using this strategy, the odds against a couple outliving their savings fell from 50% to 12%.

To get a initial answer on whether converting to a Roth makes sense to you, try Morningstar's or Vanguard's online calculator.

As you can see, converting to a Roth is a mind bending calculation that requires the input of your financial advisor, your accountant and your own wisdom of Solomon.

For more information on Roth conversions and IRA's in general, please see retiresecure.com and irahelp.com.