In our experience, estate planning with second marriages is one of the most difficult situations to plan for. We have all heard stories about someone dying, their spouse remarrying, and the kids of the first marriage receiving no inheritance.
We have prepared wills for surviving spouses who, after their spouse’s death, promptly redid their wills to include only their children and deleting the deceased spouse’s children. Remember that unless you have entered into a prenuptial or postnuptial contract with your spouse, they have every right to change the beneficiary of their wills if you die first.
Other issues also arise which are unique to second marriages. Recently I met with a woman whose husband died suddenly. He was older, but not elderly. My client was aware that her husband had children, but she had never met them. The children were estranged from their father.
Her husband never signed a will. Of most concern to her was the status of the house that she lived in, which was in her husband’s name but not hers. Under Virginia law, because she was not a joint owner with the husband, and because he had children outside of the marriage, she now owns her home with her husband’s estranged children. She owns a 1/3 interest, and they own a 2/3 interest. Chances are, her husband would not have wanted her to share ownership of their home with his estranged children, but there is nothing she can do about it now. Because the husband died without a will, it is not clear who will become the administrator of the estate, although the wife hopes to be the one.
One big takeaway from this scenario is to make sure you have a last will and testament whether you are married or single, first marriage or second marriage. Having your wishes in black and white and naming the person to be in charge of your estate makes things much clearer and easier on your family.
Our second suggestion if you are in a second marriage and want to make sure the children of your first marriage are taken care of, talk to us about the plusses of using a trust to provide for the children. Although you may trust your spouse to carry out your wishes after your death, never underestimate the power of others to influence your spouse in the future, especially as they age and become more vulnerable.
Read more about our thoughts on this topic here.
