Estate Planning Options for Couples in a “Second Marriage”

Posted by David Heller on June 10, 2021

This is the second of a two-part blog about estate planning for couples in a “second” marriage.  When you are in a “second” marriage, one of the main questions is how to divide the assets when the second of you dies. First, before getting to this question, you should really consider using a trust in your estate plan to ensure that there are assets left for the children. Without a trust, if the survivor of you remarries, the new spouse could end up with the assets and leaving the children little to nothing.

Couples in a “second” marriage usually decide to divide up the assets in one of four different ways: 

  • 1. All One Happy Family: In this distribution plan, the assets are divided equally among all the children. Each child is treated as an equal, regardless of which side of the couple the child comes from. If there are 5 children, then everyone will receive a ⅕  portion of the assets. This is most common when the second marriage is a long-term marriage.
  • 2. By Each Family Tree: In this distribution plan, the assets are divided as if moving down the family tree. First, the assets are divided with half to the husband’s side and half to the wife’s side. Then each half is divided among that parent’s particular children. For instance, assume the husband has two children and the wife has three children. The husband’s children will equally divide the half allocated to his side, while the wife’s children will similarly equally divide the half allocated to her side. This results in the husband’s children each having a ¼  portion of the assets, while the wife’s children receive a ⅙  portion. The result is that each side of the family is treated equally, even though all the children do not receive the same equal portion.
  • 3. Who Brought What To the Family By Proportion: In this distribution plan, the assets are divided based on who brought what to the marriage. Sometimes it is a literal division:  the husband brought a specific bank account that is designated back to his children and the wife brought a certain piece of real property that is designated back to her children.  Sometimes it is based more on a percentage or ratio that incorporates a “By Each Family  Tree” concept. If the husband brought 30% of the assets to the family and the wife brought 70%, then the assets will be allocated 30% to the husband’s children and 70% to the wife’s children. At this point, the “By Each Family Tree” division is used so that the husband’s 30% is equally divided among his children and the wife’s 70% is equally divided among her children. Using the example above with these percentages, the husband’s two children each receive a 15% portion and the wife’s three children each receive a 23.333% portion.
  • 4. Something Else: Some couples do not use any of these three distribution patterns described above. Instead, they have a totally unique idea on how to allocate the assets.  Maybe a larger portion is allocated to a child who has special needs and will need significant financial resources during the child’s life. Or one child is distant from their family and not part of the asset allocation at all. There are many reasons why a couple may choose their own allocation formula. 

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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