Divorce is more common now than it was in the past, as is remarriage. Depending on how long a prior marriage lasted, the former couple may have engaged in certain levels of estate planning together. When that is the case, it is important to understand how a subsequent marriage can impact the estate planning from a prior marriage. If you or someone named in your estate planning documents has remarried, there are several major issues that you should be aware of as well as steps you should take to ensure your estate planning continues to be appropriate for your current situation
How Does Your Current Spouse Factor into Your Estate Plan?
Perhaps you and your current spouse have decided to take a “what’s mine is mine, and what’s yours is yours” approach to property. If that is the case, it is crucial to understand how your state’s laws handle property division at the death of a spouse. Even if you have completed your own estate planning with provisions designed to keep your property separate from your spouse so that it will pass directly to your children, grandchildren, or others, including charities, most (but not all) states have default laws to ensure that a surviving spouse is not completely disinherited.
On the other hand, assuming that you do, in fact, want to ensure that your surviving spouse receives some (or even all) of your property, it is equally important that your estate planning documents clearly communicate your intent. By making your intent clear, you can preserve a good relationship between your children from a former marriage and your new spouse. When children understand what your intentions are and why you are dividing property in a particular way, their assumptions about why their stepparent is receiving, for example, the family home, can be corrected.
When Beneficiaries and Fiduciaries Remarry
Remarriage can disrupt your estate planning even when you are not the one who remarries. Sometimes, a beneficiary remarries after you have named them in your legal documents. If the new marriage is rocky because the new spouse is financially unstable, at risk for lawsuits, or so flaky that the marriage appears unlikely to last for very long, it may be time to review the provisions of your estate planning. In such a case, you may want to specify that any inheritance that passes to your beneficiary alone must be held in an ongoing asset protection trust for their benefit. Such language can prevent the inheritance you leave the beneficiary from being attached by their spouse’s creditors or even from being divided as marital property in the event of a divorce.
We Can Help
We hope the above examples have underscored the point that remarriage is a significant enough life event that you should work with your estate planning attorney to carefully update your estate documents to reflect your current situation and intent. If you need help thinking through these various considerations for your own circumstances, please contact us. We have the expertise and experience to help ensure that your estate plan will work for you and your family exactly as you intend.