Estate Planning for “Second Marriages” is Different From “First Marriages”

Posted by David Heller on June 3, 2021

This is the first of a two-part blog that will discuss estate planning for clients in a marriage that is not their first marriage. One of the most important pieces of information in estate planning is marriage – are the clients married? If so, are they in a “first” marriage or a “second” marriage? It really doesn’t matter if the clients are in a “second”, “third”, or more marriage. For estate planning purposes, any marriage that is not the first is considered a “second marriage”. That is because the real question is whether the clients are both the parents of the children. And we are not taking the “marriage” designation totally literal. People have children when they are not married. Again, the crux of the question is if the clients are the parents of the children.

If the answer is a “second” marriage, then there is additional information that will be helpful to the estate planning attorney and decisions that you need to think about.

  1. How long have the clients been married? Being in a second marriage for 2 years rather than 22 years can have different aspects to the planning decisions. There are different decisions and feelings with short-term blended families than long-term blended families. For instance, in a 2-year marriage, the clients may not want everything to go to the surviving spouse, but rather split it between the surviving spouse and the decedent’s children. And the clients may want to set up a plan that provides for the survivor spouse, but when he/she later passes, directs each of the client’s respective assets to their own children.
  2. Who brought what assets to the marriage? Did each of the clients bring the same amount of assets to the marriage? Or did one bring significantly more assets to the marriage than the other?
  3. How are the clients currently holding the assets? Did they commingle them under joint names? Did they name each other as the beneficiary of a life insurance policy and retirement accounts? Are both of the clients’ names on the deed to the house? Or have they kept their assets separate?
  4. At the death of the first of the clients, how will the assets be allocated? Are they all going to the survivor? Are they going to be divided between the survivor and the children from the decedent? Regardless of this answer, most clients want to keep their remaining assets for the spouse and their children, and protect their assets from the survivor’s children and from the survivor’s new spouse, if the survivor remarries. We can do this by using trusts in the estate plan.

If you have any questions or comments about this topic, please do not hesitate to contact the estate planning lawyers at Martin Heller Potempa & Sheppard, PLLC.

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