Why You Should Review Your Estate Plan Before A Second Marriage

It is becoming increasingly common for people to remarry and create blended families. When blended families are created, estate planning becomes a little more complicated. Estate planning for a blended family can be complicated because each spouse may want to provide for each other, their biological children, and maybe even their step-children/adopted children after their death. If this sounds like your family, you should proceed cautiously and read ahead for some guidance on estate planning. 

Estate Planning Considerations Before a Second Marriage

A remarriage may create a unique set of legal questions. People assume that their adult children will automatically inherit their assets when they pass away. People make this assumption because most of their property and assets have been spent with their previous spouse, who was possibly a  co-parent to the children, and the one who may have helped to build or sustain the family assets.

However, a new marriage means that the family property is governed by the laws of the new marriage. If there is no prenuptial agreement with the new spouse and they survive you, then they would inherit at least one-third of the estate according to New York laws. This means that your adult children from a previous marriage might be in for a rude awakening. A large part of the children’s inheritance might be gone due to the new spouse’s right to inherit one-third of their spouse’s estate.

In order to avoid confusion and possible heartache in the future, have these discussions with your family now. Consulting an experienced estate planning attorney will help with deciding the best ways to make sure your wishes are carried out. 

Elective Shares

As stated earlier, if a spouse dies, then the surviving spouse has a right to inherit a one-third share of the deceased’s estate. This is what’s known as an elective share. By law, a spouse cannot be disinherited unless they willingly choose to be. The only way that a surviving spouse can be disinherited completely is through a prenuptial agreement, where each spouse can agree to waive any claims to an elective share of one another’s estates. 

Your elective estate includes not just property in your name alone, but also most assets with beneficiary designations such as bank accounts, securities, IRA accounts, the cash value of life insurance, etc. Essentially, you would not be able to easily ignore your spouse’s rights to their elective share. One may assume that if assets are left in a trust for a child then it would be difficult for the surviving to claim their shares. However, the surviving spouse can still file a probate proceeding and possibly force the child to return the assets to satisfy the elective share law.

Prenuptial Agreement Before The Next Marriage

It’s important to recognize that a prenuptial agreement does not mean that a couple will be planning to get a divorce, or that spouses do not trust one another. Rather, couples are recognizing the importance of their upcoming legal commitment to marriage. Older clients who remarry often have important financial obligations from previous relationships such as alimony or child support payments. They may also have hard-earned estates they wish to leave to children from previous relations. In order to provide a solid foundation for their future marriage, people should consider sorting through their finances. By signing a prenup, couples are communicating their concerns for the future financial security of their other relatives and are expressing their respect for the hard-earned assets and accomplishments of their future spouse.

Review Your Estate Plan Before Remarrying

Before getting remarried it is important to focus on redoing your estate plan. During your first marriage, you may have created an estate plan, however this time it might be more complicated, especially if you have children from your first marriage and/or you have since then acquired more valuable assets. Here are some of the best methods we recommend to ensure that your interests are met when you remarry:

• Take Stock. You and your soon to be spouse should take an inventory of your individual and/or shared assets and debts. Make sure to include life insurance policies and retirement plans in your stockpile. And be sure to disclose to each other all of this. It is best to be open and honest about money with your spouse. 

• Financial Management Decision. Once you know what both of you are worth financially, then you two need to decide if you want to combine (or not combine) assets when you are married. For example, if one spouse has significant debt (ie. student debts) you may not want to combine finances or make any joint purchases. These decisions need to be made upfront so everyone is clear on what to expect.

• Discuss Who Will Receive What. You and your future spouse need to figure out who will receive your estate when you die. This can be complicated discussion if you have children from a previous marriage. By law, if you leave all your assets to your new spouse, there are no guarantees that your new spouse will be required to provide for your children. If you would like to ensure your children are provided for, there are numerous options available. Some of these options include: creating a trust for your children, naming your children as beneficiaries on life insurance policies, or explicitly giving your children joint ownership of a property. If any of these options sound appealing for your case, consult an estate planning attorney for which option is best.

• Double Check Beneficiaries. If you have a previous estate plan created, you should double check who you named as the beneficiaries on your life insurance policy, and/or retirement plan. Upon reviewing, you may want to change who you previously named. However, if you are divorced, you may not be able to change some of the beneficiaries. When you return to your estate planning attorney, be sure to bring your divorce decree so they can make sure you do not violate the decree. If it is the case that you can not change your beneficiaries, you can buy additional life insurance or retirement plans where you can include your new spouse or future children.

• Consult An Estate Planning Attorney. Before you remarry and if you have an existing estate plan, you should definitely consider updating your last will. You might also need to update or even create other estate planning documents like a durable power of attorney and a health care proxy.

Before or maybe after consulting an attorney, be sure to be open and honest to your family members and loved ones about your wishes so there are no surprises. If you would like to review and create a new estate plan before remarrying, please contact the Law Office of Inna Fershteyn at (718) 333-2395.