While the formal will is the most important document in estate planning, there are occasionally needs for additional information or instructions. We have identified an area that is not a component of classic estate planning, but that becomes significant following the passing of a spouse. That subject is remarriage of a surviving spouse.
In many cases supplemental instructions to the family are best communicated via a “Letter of Last Instructions,” or LLI. This is an informal document that provides helpful instructions and guidance to the surviving family after the death of a husband or wife. While the written will may not be available at the time of death, the LLI should be readily available immediately after death has occurred. The LLI does not have the legal force of a will and does not require an attorney for its preparation, but it does set forth the intent of the LLI author. Other subjects that could be included in an LLI will be discussed in future articles on estate planning.
Widow or widower remarriage is a subject that is important and can be or become a source of family conflict. The couple’s views on remarriage should be clearly outlined to their children, parents, grandparents, friends or others who may be impacted by this decision. Appreciation of these goals, desires and instructions may greatly facilitate and enhance management of the difficult period after a spouse passes.
More importantly, the availability of instructions regarding the couple’s wishes may reduce associated anxiety, minimize potential family quarrels and facilitate adjustment to the new life situation without the presence of the deceased.
For your information, one author (NS) was widowed in January 2011 and happily remarried in March 2013. The other author (EJG) was widowed in July 2012. Both of us are grateful to our late spouses for giving their blessings to eventual remarriage. In fact, we believe that it would have given our spouses peace of mind to know that we would not be facing life alone and that we would not become dependent on our children or others.
While the conflicting and stressful issues surrounding second marriages can occur with couples of any age, it is especially relevant in middle-aged or older couples with adult children. We have seen several cases where the surviving spouse sought to remarry and this new union became a source of significant and persistent acrimony among the children and between them and the surviving parent. Ideally, in an attempt to avoid this situation and to make the parents’ wishes known, written documentation should be made while both spouses are healthy and of sound minds and should be conveyed to their children and relevant others. While there is no ideal time to present this information to the family, it clearly is essential if one of the couple were facing a serious illness or operation where life expectancy could be compromised. A milestone birthday, such as 60, 65, 70, or other age is an opportune time to contemplate one’s inevitable mortality and prepare this document for presentation to the family. Should death occur unexpectedly, the opportunity might be missed to communicate the parents’ desires to their children. For maximum efficacy, the parents’ goals, wishes and intent for post-widowhood remarriage should be expressed both orally and in writing to the children, grandchildren, surviving parents and other relatives or friends. Videotaping these instructions could also be helpful. These instructions might be able to prevent or at least ease a difficult intra-family problem.
When the children realize and understand that both spouses support remarriage of the surviving spouse, we would hope and expect that the concept of remarriage would become more palatable to them. The children should be advised, and comforted by the fact, that both parents enjoyed a happy and successful marriage and each prefers a married lifestyle to living alone without companionship as a single widow or widower. The surviving spouse deserves the support, encouragement and possibly advice of their children in this endeavor. We encourage parents to express that they respect the difficult and conflicted emotions that their children may have in the face of remarriage of the surviving parent and spouse.
The death of a spouse is always an extremely challenging event for the surviving family members and friends. Remarriage of the surviving spouse should be accepted as a possible, if not essential, option. Just as primary marriages can be beautiful and bring joy and happiness to the couple, so too can remarriages be successful and satisfying. These instructions should provide the surviving spouse with an opportunity and the flexibility to freely make a choice to remarry.
By Erica J. Goldberg, Esq. and Norman Sohn, MD, MBA, CRPC
