Congratulations! You found a partner with whom you want to share your life, and the two of you decided to marry. It’s time to create an estate plan. But if one of you was previously married, it is important to think deeply about how you would like to structure your plan to avoid any unnecessary pitfalls of estate planning and second marriages.
If you have children from a prior marriage or relationship, things can get complicated.
In first marriages where couples share all of their children, it is common for one spouse to leave all of their assets to the surviving spouse and then to their children. But if one spouse has children from a prior relationship, it may not be desirable to leave all of the assets to the surviving spouse because the survivor could amend the estate plan to redirect the assets wherever they want. This means the deceased spouse’s children are at the mercy of their stepparent to honor the wishes of their deceased mom or dad.
When couples divorce, they are required to file a separation agreement with the court outlining the terms of the divorce. This includes things like asset divisions, ongoing children support, and alimony. The Agreement may also create new obligations, such as requiring one or both parties to obtain life insurance on themselves and naming the other party (or a trust) as the beneficiary.
These types of obligations often have time limits, as they are meant to support children while they are young or the ex-spouse until they remarry. Such obligations must be incorporated into a new estate plan upon a second marriage. Changing a beneficiary designation on life insurance required to be paid directly to an ex-spouse would be in breach of the separation agreement, creating the likelihood of litigation. You should provide your estate planning attorney with an executed copy of your separation agreement to ensure that your legal documents are working in concert rather than contradicting each other.
There are many practical considerations when creating an estate plan, especially involving a second marriage. One is the age of the parties. It is common for later-in-life marriages to move quickly (why wait?!) and for there to be larger age gaps than for younger couples. While it is not inevitable an older spouse will predecease the younger spouse, it would be prudent to picture a scenario in which this occurs. If an age gap is substantial, will the younger spouse have enough assets to live? How about if the older spouse has children from a prior marriage and intends to leave assets to the children at death – in this case, should the younger spouse receive more of the estate than the children because of a longer life expectancy?
Prenuptial agreements can be very helpful during estate planning and second marriages to avoid confusion after the death of one party. This is especially true if the parties are married a relatively short time before the death of one spouse. It may not be prudent to leave all of one’s assets to a spouse to whom they were married for only a year before passing away, especially when there are many familial relationships at play. Furthermore, one spouse may be significantly wealthier than the other, creating some inherent imbalance in the relationship that should be handled before exchanging vows.
If you are entering into a second marriage, contact us at Mulhall Withrow. We can help you strengthen your bonds and safeguard the future of your family.