Usually the wife is the first one to ask the question and it becomes apparent that this is really the reason they came to our office in the first place. Its a legitimate concern and one that many estate plans do not take into consideration. Its also about more than the "Evil Spouse;" its also about the "Evil Creditor" or the "Evil IRS, " or the "Evil Government."
The fact is that if you have a simple estate plan or no plan at all, there is no protection against the "Evil Spouse." If your material possessions go outright to your children at your death then they immediately become capable of being obtained by others, and among other things, your treasured antiques or heirlooms are subject to the claims of their creditors (including an "Evil Spouse"). Not a good situation.
There are a number of solutions and each one will depend upon the type and character of the assets you own as well as your own goals and objectives.
For instance, you may want to consider establishing a trust for your children which would be managed by a trustee of your choice. If structured properly, assets held in trust would not be subject to the claims of creditors or the "Evil Spouse." Your instructions could allow the trustee to make payments for health, education, support and maintenance to your children and allow them to withdraw additional funds according to set standards, or when they attain certain ages or complete established incentives.
Other solutions are available including the use of limited liability companies which provide substantial protection particularly when funded with commercial or residential real estate investments.
Each situation is unique and requires solutions specific to the situation and to the individual. If you want to ensure that the "Evil Spouse" is cut out of your plan, make an appointment and discuss your concerns with an attorney that specializes in eliminating estate planning problems.