The estates of those who had entered into second marriages are often the subject of litigation between the decedent’s children from the prior marriage and the second spouse. Careful estate planning can mitigate the risks of very expensive and protracted litigation which can erode the estate.
Wealth Advisor’s recent article entitled “Estate planning for second marriages” asks, first, does the individual’s (the testator) spouse even need support? If they don’t, a testator typically leaves his or her separate property directly to his or her own children. However, because the surviving spouse is an heir of the testator, his or her will and/or trust should acknowledge the marriage and say that the spouse is not inheriting. Also, if the surviving spouse has not waived his or her rights to the testator’s estate in a pre-nuptial or post-nuptial agreement, the surviving spouse could exercise his or her rights to receive part of the testator’s estate.
If the spouse needs support, consider the assets and family relationships. Determine if the assets were brought into the marriage or acquired during the marriage. It is also important to know if the testator’s spouse and children get along and whether it’s possible for the beneficiaries to inherit separate assets. If the testator’s surviving spouse and children aren’t on good terms and/or are close in age, and if it’s possible for separate assets to go to each party, they could inherit separate assets outright and part company. If not, it can get heated and complicated quickly. For example, the testator’s house could be left to his or her children and a retirement plan could go to the testator’s spouse.
If that type of set-up doesn’t work, a testator might consider making the surviving spouse a lifetime beneficiary of a trust that owns some or all of an individual’s assets. A trust requires careful drafting, so work with an experienced estate planning attorney.
Next, determine if the children need support, and if so, what kind of support. Also think about whether the children can manage an outright inheritance or if a special needs or a support trust is required.
This just scratches the surface of this complex topic. Talk to the experienced estate planning attorneys at Kurre Schneps LLP about estate planning for second marriages in Long Island, or your specific situation.
Reference: Wealth Advisor (Feb. 23, 2021) “Estate planning for second marriages”
