Estate Planning Considerations in Second Marriages

Estate planning is always a sound idea, and drawing up a will is a good way to start. Documenting your intentions for how you want things to be handled after your death is the best way to make them happen. It can prevent litigation, attorney's fees and bad feelings among family members that might never be resolved.

Estate planning can be more complicated where a second marriage is concerned, especially when both spouses have children from a previous marriage. The spouses should take the time to consider any possible contingencies and plan for them with proper estate-planning instruments.

When it's done right, estate planning considers many factors. These can include the length of the marriage, the age of the children, the spouses' net worth, and the partners' relative contributions to the marital estate. If the spouses make little or no provision for each other at death, they should seriously consider properly prepared prenuptial and postnuptial agreements regarding disposition of the marital assets upon death or divorce. These agreements are essential if there is no will, as many jurisdictions require that at least half of the marital assets pass to the surviving spouse, possibly leaving little to the deceased spouse's children.

If the spouses die at the same time, a simple disposition would be for each spouse to pass assets on to his or her own biological children, or to divide them equally among all the children.

In the more likely event that one spouse outlives the other, it is possible that all the decedent's assets would pass to the surviving spouse, who might spend all the inheritance or dispose of any remaining assets to his or her biological children only. The decedent might not have intended for this to occur, so the will must clearly state the intent regarding disposition.

A will can also provide that the surviving spouse inherit any percentage the decedent intends, with the remainder to be divided in any proportion or manner desired among the individual's own biological children or among all the children. The will can even specifically exclude any of the children.

If the surviving spouse needs at least some assets to live on or to continue to maintain the lifestyle previously enjoyed, a trust in which the surviving spouse would have limited access to the assets could be established.

Fully disclosing your intentions to all the children prepares them for how the assets will be distributed and minimizes surprises and possible allegations of undue influence. Selecting a reliable trustee and executor is also in everyone's best interests.