The work of estate planning is largely the work of asking “what if?” What if you die before your spouse? What if your spouse dies first? What if you both die together? What if a child predeceases you? What if a child predeceases you leaving young children of their own? What if a beneficiary develops a substance use issue? What if the law changes? A real plan answers these questions before they become emergencies.
Let me show you what this looks like in practice. Imagine a client — call him Tarzan — married to Jane. They have two children, Cheetah (age 12) and Boy (age 8). Tarzan and Jane have a comfortable estate, mostly the family home, retirement accounts, and a brokerage account. They want to leave everything to each other and ultimately to their children. That sounds simple. Let’s see what happens when we ask “what if?”
What if Tarzan dies first?
The default thought is: “everything to Jane.” And for many couples that’s right. But a few what-ifs complicate it.
What if Jane remarries? If Tarzan leaves everything to Jane outright, Jane’s new spouse may end up with assets Tarzan thought he was leaving for the children. A common solution is a QTIP trust (qualified terminable interest property) or a similar marital trust. Jane gets income from the trust during her life, and may have access to principal for health, support, and maintenance. But Tarzan controls who ultimately receives what’s left when Jane dies — and that goes to Cheetah and Boy, not to whoever Jane married after him.
What about taxes? A QTIP-style trust can be drafted to qualify for the unlimited marital deduction, deferring estate tax until Jane’s death. Whether it’s the right structure depends on the size of the estate and the federal and state exemptions. These thresholds change.
What if a child predeceases?
If Cheetah dies before Tarzan, what should happen to Cheetah’s share?
If Cheetah died with no children of her own, the answer is usually “up to her sibling” — Boy. If Cheetah left children of her own (Tarzan’s grandchildren), most clients would want the share to go to those grandchildren. The legal phrase for this is per stirpes — “by the roots” — meaning the deceased child’s share moves down the family tree intact rather than evaporating.
The opposite default is per capita, meaning surviving children divide the entire estate among themselves and the deceased child’s descendants get nothing. Per capita is rarely what clients want. But if your will doesn’t say which it is, the default depends on state law and the specific language used — and the result may not match your intent.
What if a child is too young to inherit?
Cheetah is 12 and Boy is 8. They cannot manage an inheritance. Even when they reach 18 (the age of majority in most states), most parents do not want a teenager handling six-figure or seven-figure assets directly.
The solution is a trust for the child — sometimes called an age-terminating trust — with a trustee managing the funds until the child reaches a specified age. We commonly stagger distributions: 1/3 at 25, 1/3 at 30, 1/3 at 35. Or all of it at 30. Or a percentage at marriage or graduation. The structure should match the child, not the average. A child who is responsible at 22 may not need staggered distributions at all. A child with substance use issues may need a discretionary trust that never terminates. (For a deeper look, see why doing nothing leaves these decisions to the state.)
What if Tarzan and Jane die together?
The airplane-crash scenario. Or any other simultaneous-death event. The plan has to anticipate it.
If everything goes to the surviving spouse, but no spouse survives, what happens? The will needs a contingent disposition: typically “to my children, in trust if necessary.” And the contingent guardian nomination is now in play — who raises Cheetah and Boy?
Some plans use a simultaneous death clause establishing an order of deaths for purposes of the documents (typically presuming the wealthier spouse died first, for tax reasons). Others rely on state default rules. Either way, the question must be answered explicitly.
What if a beneficiary has a substance use issue?
One of the most common late-stage drafting changes we make. A child who was fine at 14 may not be fine at 24. The plan that distributes outright at 30 may now be exactly the wrong plan.
The fix is often a discretionary trust — the trustee decides when and how much to distribute, based on the beneficiary’s circumstances. The structure is delicate: too restrictive and you create resentment and family conflict; too permissive and you defeat the protective purpose. We work through this with clients case by case.
The point.
An estate plan is not a snapshot of today. It is a flexible structure designed to handle the futures you can imagine and the ones you can’t. The “what ifs” are not paranoia — they are the work.
Quick FAQ.
Do I really need to plan for all these contingencies? Yes. The point of a plan is to protect your family from surprises — including the ones you don’t want to think about. A good plan covers the realistic ones with relatively little extra drafting.
What does “per stirpes” mean again? Latin for “by the roots.” It means a deceased beneficiary’s share moves down to their descendants, rather than being absorbed by surviving siblings.
Should I use a QTIP trust? Sometimes. They’re especially common in second marriages, where each spouse wants to provide for the other but ensure assets ultimately reach their own children.
What about my children with special needs? Special-needs trusts are their own specialty. They preserve eligibility for government benefits while allowing supplemental support. Talk to us about whether one fits.