Second marriages are very common and they are one of the most important reasons to have your estate plan updated or in some cases, created. When it comes to second marriages and estate planning there are considerations you did not have with your first marriage. You want your estate plan to reflect what is important to you and that usually includes providing for your second spouse, stepchildren perhaps, and certainly updating power of attorney and advance healthcare directive. Proper estate planning encompass a wide variety of necessary documents to ensure your wishes are known and executed as needed.
If you created an estate plan early on which included a spouse from a first marriage and children from that marriage, and circumstances have changed from divorce or widowhood, you need to revisit your estate plan. In fact both partners in the marriage need to update their estate plan. It is important to consider how your second marriage will affect your estate planning.
It is good to have the ability to change your estate plan as needed. We want our clients to feel confident to take the time to discuss concerns and changes with us and that we will provide them with good legal guidance.
More Than a Spouse
Getting married again can have a tremendous impact on your estate plan, as a new spouse comes with their own family. That change in marital status may lead you to think about what changes in your estate plan need to be taken regarding beneficiaries.
For example, if you have children with your previous marriage, you may feel inclined to secure the assets intended for them in the estate plan and exclude your spouse’s children. If you and your second spouse have children together, you likely want to add them as beneficiaries. You may find over time your spouses children become like your own and you want to include them in your estate plan.
Ultimately, the introduction of new family members may lead to evaluate the need to make changes to that plan. Having a discussion with your attorney and your spouse can make sure everyone is comfortable about who is provided for and how.
Spouses Old and New
When considering changes to your estate plan because of a new marriage, it’s smart to start with the spouses. If a former spouse passed away, then of course they need to be removed. If your former spouse is alive you may need to keep them provided for in some manner because of the requirements of a divorce decree or simply because you are on good terms and want to make sure they are provided for, as they may need financial help to raise any children you had together. However the former spouse can be removed if as a beneficiary if the marriage ended on bad terms, or you feel the spouse received a fair settlement during the divorce hearings and you do not need to further provide for them.
New spouses can be added or excluded from the estate plan, too. There are no requirement to add your second spouse as a beneficiary on any estate plan, but it may make sense that you want your beloved to share in the benefits of your accumulated wealth. And since estate plans also includes instruments that outline what you want should you become incapacitated due to an accident or illness, you may want your second spouse to be given the power to handle your finances and medical decision making.
Children and Other Family
Children from the previous marriage can also be included or excluded, as can stepchildren or any other family members such as nieces, nephews etc. As stated earlier, children are often named as beneficiaries but which children and why depends on factors. For example, perhaps the children from a first marriage are grown and well off financially and no longer need to be provided for, while the children of a second marriage are young and will have greater financial needs should you pass away. Estate plans include naming a guardian for minor children if both parents die together say in a car accident.
In some cases if the estate is substantial, children, family members, friends, and even organizations can be named beneficiaries to reward them for their love and loyalty over the years, or in the case of a charitable organization, to provide money to support their charitable work.
Remember that an estate plan can include anyone as a beneficiary. Deciding how to design your plan, is best discussed with an accomplished estate planning attorney. For example in California, trusts are considered better that wills because of the California probate process, which can be long and expensive..
Depending on the family situation that arises from a second marriage, it can be wise to communicate any changes to your estate plan to with family members about who will inherit and the reasoning behind it. Second marriages and estate planning can invite concerns from family members. By sharing your thinking, there hopefully will not be bad feelings or confusion about who inherits and why. A well designed plan can help you make it clear and avoid hard feelings among family members. For example, you may want to provide for your second spouse (wife or husband) but upon their death, your remaining assets should pass to your biological children and not to her/his children.
By designing your plan (will/trust) with the guidance of an experienced estate planning attorney, you can help ensure no one challenges your wishes. While such situations may not occur, having an estate plan with solid legal backing can help ensure the orderly execution of your plan with minimal or no challenges.
As in most things, good communication is always help to keep conflict or drama to a minimum. Your second spouse should clearly understand how and why you you are making certain designations and visa versa. You can communicate your reasons within the documents as well so that upon your passing, you can convey your reasons in writing to provide further context. While some family members may not agree with the plan details, the communication will help create reasonable expectations.
Let Us Help
If you are marrying for the second time, let us help. Sit down with Carlsbad estate planning attorney, Andrew Fesler. I understand second marriages and estate planning come with unique considerations. I am focused on quality relationships, individualized services, and a ‘meet-the-client-where-they-are-at’ attitude that provides a better experience for my clients. To find out more about I can help you with second marriages and estate planning, contact our office today.