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Estate Planning for Second Marriage and Later Marriage Situations

One size does not fit all when it comes to estate planning. We do estate planning day in and day out – and have for over 35 years. The uniqueness of each of our clients and their needs and situations have become evidently clear to us, especially for second marriage situations. Traditional families of the 1950′s rarely exist any longer, and the blended families through second marriages (because of divorce or death of the first spouse) are becoming  commonplace. Our practices for every plan depend on sound decision making and careful organization through any will planning documentation. When doing estate planning for a client in a second marriage, these practices are also put into place and in addition special consideration is taken because many of the methods relied upon in a first marriage will not work with a second marriage. In addition, generally speaking, any plan that involves probate (such as Will planning) in a second marriage situation may cause problems.

1st Example

Husband has 2 children from a previous marriage. He has been remarried to a new spouse for a few years. His children are grown, have jobs and are supporting themselves. He and his wife have a will that leaves everything to the surviving spouse and then to his children. The husband dies first. In order to use the will, the wife has to probate the will. In the probate process the husband’s children have to be invited to participate. Even though they are to receive nothing, they have to be given a chance to object to or challenge the will. This probate creates tension on both sides. The surviving wife has to worry that the children will use this arena to air their dissatisfaction with her. The children are often insulted because they are asked to consent to a will that leaves them out completely. These tensions can usually be greatly reduced by avoiding probate. But this means planning using something other than a simple will.

2nd Example

In this same situation, after the husband dies, even if the probate causes no problems, the simple plan may. Since everything went to the wife, her will now controls what happens to those assets at her death. There may be a long period of time between the first death and the second death. Even if relations with the husband’s children were good while he was alive, without the husband to be the glue for the relation between the wife and the children, their relation may wither over time. The wife, through no ill will, may simply decide to change her will to leave assets to others. The children of the husband received nothing at his death, and may receive nothing at the wife’s death. The traditional simple will pattern just does not work in this setting.

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These examples often turn out similarly regardless of whether it is the husband or the wife
or both who have children by a previous marriage, and regardless of which spouse dies first.

 

In second marriages and later marriage situations, premarital property, property accumulated during the course of the subsequent marriage, children from different marriages, distributions to children, beneficiary designation, estate tax exclusions as well as emotional issues are just a few of the special considerations taken into account. The goal is to put together a complete, organized plan that will cause as few fights, challenges and discrepancies as possible with as little cost as possible to the living spouse and/or the heirs.