Legacy Assurance Plan: Second Marriages and Your Estate Plan

Summary: There are many things in life that can highlight the need for a well though out estate plan that states your goals and desires with clarity. One such event is your decision to marry again. If you’ve decided to re-marry, you need a detailed plan to ensure that your objectives are

Many people find love later in life. Whether their previous marriages ended as a result of death or divorce, they’ve moved on and have now found a new partner to share their lives with. For a lot of those people, they decide to take the plunge… again… and marry. If you are someone who has, or is considering, getting married for a second (or subsequent) time, there are some things regarding your estate plan that you should keep in mind.

The main and overarching thing you should keep in mind is the importance of details and clarity in your planning. Whether your plan is providing instructions regarding your new spouse, your ex-spouse, your children or your step-children, it is important to be clear, specific and detailed. In fact, that is one of the wonderful benefits of putting an estate plan in place. Without a plan of your own creation, you are stuck with the one-size-fits-most plan of intestacy created by your state’s laws. With a plan of your own creation, you have extensive latitude in how you distribute your assets.

Generally speaking, the law says that you are not allowed to disinherit a spouse, so you’ll want to keep that in mind as you enter your new marriage. There is a narrow exception here because, if you and your spouse have pre-nuptial or post-nuptial agreements that say that you are waiving your respective rights to claim a spousal share of the other’s estate, then you are allowed to disinherit your spouse. If that’s the case, though you should be very certain that your estate plan makes mention of the pre-nuptial/post-nuptial agreement clearly and specifically. For those without these types of agreements, your spouse may either accept what you’ve provided in your plan, or “elect” to receive the spousal share dictated by your state’s statutes.

For many people marrying later in life, there are children (often adult children) of previous marriages/relationships involved. This is yet another area where detailed and careful planning is so important, especially if there are complexities or challenges in your extended family. Some people may be worried that, if they die first, then their children may get stuck receiving nothing while their step-children end up getting everything. For those with such concerns, planning with a trust or trusts may be helpful in their estate plans. Inclusion of a trust or trusts can give you the ability to ensure that your side of the blended family continues to have a voice, even after you die (should you die first.) You could choose, for example, to create a living trust that names you and your new spouse as the initial trustees but that directs, upon your death, that the trusteeship be held by your spouse and one of your children.

In other cases, though, the complexity doesn’t arise from concerns about your step-children, but perhaps your own children. Sometimes, bonds of affinity don’t always track along the same lines as blood kinship. You may find yourself estranged from your own children while loving your new spouse’s kids as if they were your own. Again, this is a time for careful and detailed planning. The law says that you cannot disinherit a surviving spouse, but that is the only person you can’t disinherit. There’s no law that says you cannot leave a child nothing. The law gives you the freedom to customize your plan as you desire as long as you are accounting for your spouse. If you want to leave distributions to your new spouse’s children and leave you own biological children nothing or very little, you can do so. These situations can be tricky, though, as they often create an increased risk of estate plan contests in court, so it is important to work with an experienced estate planning attorney to get the strongest possible plan.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.