second marriage children

If you are preparing for a second marriage or are recently remarried, or if you are about to get married for the first time to someone who has been married in the past, updating your estate plan should be a top priority. In some states, a second marriage automatically voids a person’s will. But, even if your will and other estate planning documents will remain valid, they almost certainly will not reflect your final wishes as you prepare for the next stage of your life.

Why You Need to Update Your Estate Plan if You Are Getting Remarried

If you put together an estate plan either prior to or during your previous marriage, your plan most likely leaves a significant portion (if not all) of your estate to your former spouse. Now that you are planning to get remarried, you need to make sure that your estate plan reflects your new family circumstances with your new, soon-to-be spouse. Of course, if you have already gotten remarried, you still need to update your estate plan, and it is not too late to do so.

Consider just some of the ways that your old estate plan most likely involves your former spouse:

  • Does your will or any other estate planning document leave property to your former spouse?
  • Is your former spouse designated as a beneficiary of your life insurance policy, bank accounts, or retirement plan?
  • Did you grant your spouse power of attorney to make financial or healthcare decisions on your behalf if you become incapacitated?

It is also important to understand how getting remarried can impact your current children. If you get remarried and you are survived by your new spouse (in other words, you die before your new spouse does), under state law your new spouse may be entitled to inherit property that you intended to go to your children.

Why Your Spouse’s Prior Marriage Matters to Your Estate Plan

If you are getting married to someone who has been married previously, you need to take this into account in your estate plan as well. For example, you may wish for certain assets to transfer to your fiancé (soon-to-be husband or wife) if you pass away; however, you may or may not want these assets to transfer to his or her children from a prior marriage or other family members. There are ways you can plan around this, and you need to do so in order to avoid any unintended consequences.

Should We Use a Joint Will?

This is a common question among married couples and couples planning to get married under a wide variety of different family circumstances. As a general rule, the answer is “no.” Here’s why:

A joint will is, essentially, two separate wills mashed into one. As a result, when one spouse dies, the couple’s joint will must be entered into probate. But, since one spouse is still alive, the will cannot be fully probated – meaning that assets could be tied up for years, or even decades, in the probate process. Using a joint will can also raise serious questions about whether and to what extent one spouse can modify his or her estate plan after the other spouse’s death. For example, suppose your spouse were to die unexpectedly; and ten years down the line, you decided that you were ready to remarry. What would your joint will mean for your new spouse? In many states, the answer is not entirely clear.

While joint wills used to be used fairly regularly because they offered cost savings as compared to other estate planning techniques, today, this is no longer the case. Due to the downsides involved, a joint will is most likely not going to be your best option.

What Estate Planning Tools Should I Use?

So, you now know that you probably shouldn’t use a joint will for your estate plan. What tool (or tools) should you use instead?

When approaching your estate plan in the context of a second marriage, you need to think critically about how each of the various planning tools that are available will and will not achieve your goals. Each estate planning tool has its own unique benefits and limitations, and building a comprehensive estate plan that effectively addresses all of the unique issues involved with getting remarried will typically require use of a number of different tools. Once your estate plan is complete, you should be able to check off each of the issues related to the prior marriage and feel confident that your new plan addresses them in detail.

Some of the most common estate planning tools available to individuals contemplating a second marriage include the following:

  • Will – The will remains one of the most popular estate planning tools; and, even if you use another document (like a revocable living trust) for the majority of your estate plan, there are a number of reasons why you will still need to have at least a basic will.
  • Revocable Living TrustRevocable living trusts offer a blend of benefits that make them desirable estate planning tools for individuals with a wide range of personal and family circumstances. Using a revocable living trust in your estate plan can help your loved ones avoid probate while also ensuring that you have the flexibility to update your estate plan as necessary over time.
  • Qualified Terminable Interest Property (QTIP) Trust – A Qualified Terminable Interest Property (QTIP) Trust is a special kind of trust that is commonly used in second-marriage situations where one or both spouses have children from a prior marriage. In addition to providing certain tax benefits, a QTIP allows you to provide for your second spouse while still ensuring that your children from a prior marriage will be the ultimate beneficiaries of your estate.
  • Irrevocable Life Insurance Trust (ILIT) – An Irrevocable Life Insurance Trust (ILIT) serves purposes similar to those of the QTIP, but specifically within the context of distributing proceeds from a life insurance policy.
  • Beneficiary Designations – Your bank accounts, retirement plans, and insurance policies may all have named beneficiaries, and if you haven’t updated your beneficiary designations since your divorce, your beneficiaries may still include your former spouse.
  • Powers of Attorney and Healthcare Directives – If you want to be certain that your new spouse will have the authority to make financial and healthcare decisions on your behalf should you no longer be able to do so, you will need to execute an appropriate power of attorney or healthcare directive that complies with applicable state law.
  • Prenuptial Agreement – Finally, while not technically an estate planning tool, a prenuptial agreement (or postnuptial agreement) can be a good option for addressing many of the unique issues that come into play in the context of a second marriage. From providing for financial support to preserving family heirlooms for your children, there are numerous estate planning-related topics that can often be efficiently and effectively addressed in a prenuptial or postnuptial agreement.

Speak with an Experienced Estate Planning Lawyer at Jiah Kim & Associates

If you would like to speak with an attorney about your estate plan, contact Jiah Kim & Associates to schedule a confidential initial consultation. Call (646) 389-5065 or submit a request online and make arrangements to speak with an experienced estate planning attorney about your needs today.

This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. You understand that there is no attorney-client relationship between you and the blog publisher. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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