Klenk Law

Estate Planning and Second Marriage

If you are planning a second marriage you are likely a bit older and a bit wiser than the first time around. Probably, you wish to avoid past mistakes. Estate Planning for a Second Marriage allows you to apply those hard learned lessons. We are happy to walk you through your options in person, feel free to call us! Meanwhile, here is a short introduction to some typical estate issues that arise when Estate Planning for a Second Marriage.

Estate Planning for a Second Marriage; Before the Wedding

  • Prenuptial Agreements: Marriage is about love, but it is also about business. You now know first-hand that not all marriages are successful. Consequently, a Prenuptial Agreement is a must. If you don’t have your prenuptial agreement the state gives you a prenuptial agreement; you just don’t have a say in the terms. So, take a State-drafted prenuptial agreement, or you are free to work out a deal that best fits your particular relationship. For more, please read our articles about Prenuptial Agreements.
  • Irrevocable Trusts: If you have children from your prior marriage, you may have assets you wish to keep apart for their benefit. An Irrevocable Trust is an excellent tool to hold assets for your children, sheltered from their creditors and divorces. Forming and funding this trust before your wedding is a great strategy to keep these assets from becoming entangled in your future marriage. In addition, this preemptive act helps protect these assets from your future creditors and if your union is unsuccessful, from your spouse. For more information, read our section about Irrevocable Trusts.
  • Revocable Trusts: A Revocable Trust can be a useful tool when you don’t wish to give up control over an asset, but you want to document that you entered the marriage with the asset and to separate these assets from your marital assets.

Estate Planning for a Second Marriage; What if you Do Nothing?

Spousal Elective Share: If you have not addressed these rights in your Prenuptial Agreement, each state gives a spouse the right to claim a portion of their deceased spouse’s estate.

  • In Pennsylvania, a surviving spouse may exercise an Elective Share to one-third of the estate property. The Elective Share applies even if your Will excludes your spouse. Speak to an experienced Probate Attorney before electing to take the statutory share because, by taking the elective share, may forfeit rights to properties in any trust created by the decedent.
  • In New Jersey, unless waived in a Prenuptial Agreement, a surviving spouse is also entitled to an elective share of one-third of the estate property. To claim the spousal share, the surviving spouse must within six months file a complaint in the Superior Court. Speak with an experienced Probate Attorney before making this election. Elective Share elections are a complicated area of the law. An uninformed election could lead to unintended consequences.

Intestacy, Having No will at Death: If you have no plan, then your assets pass under the State’s plan. Also, without a Will, there are no protective trusts. Further, your spouse or your children may receive more than you intend, leaving your wishes disregarded. A Will allows you to craft a plan that reflects your real desires. The Intestacy Rules do not take your wishes into consideration.

Estate Planning for a Second Family; After the Wedding

Estate Planning: Marriage allows spouses to work as a team. Married couples may use Estate Planning methods to shelter assets for the surviving spouse. Further, a married couple can use their status to create protection for children that would not otherwise exist. Estate Planning can protect your surviving spouse, beneficiaries, and heirs; plan for illness or disability; preserve your estate; avoid probate; avoid disputes; making your will “Will Contest proof.” Let’s talk!

Estate Planning for a Second Family; Typical Documents

Will: Without a Will, the state decides where your assets pass at death. The State provides no protective trusts and disregards your wishes.

Contracts To Will: Married couples can legally bind each other to follow a Will’s terms. Such as, the first spouse has a right to live in the family home, which then passes to the second spouse’s children. See Contracts To Will.

Funeral Arrangements: Disputes erupt between children from first marriages and new spouses regarding funeral arrangements and the location of your burial. Naming the right person or persons to control these decisions can avoid conflict. Create a Funeral Directive.

Financial Power of Attorney:. If you are unable to make decisions for yourself because of some accident or medical issue, who makes your financial decisions? This person may be your new spouse, a child or two people working as Co-Agents. Now that you have remarried, it is time to assess who your trust with this responsibility. Create a Financial Power of Attorney with clear direction on gift powers.

Medical Power of Attorney and Living Will: If you are not competent to make your medical decisions, who decides which doctor treats you or the withdrawal of medical care? Remarriage requires reviewing this power. Your Living Will and Medical Power of Attorney controls who visits you when you are ill as well as who serves as your doctor; select a person who can work well with all family members.

Revocable Trust: For married couples, a Revocable Living Trust has many purposes. To learn more, follow this link to Revocable Trust in depth. But, they are especially useful for those in second marriages who wish to have children from the first marriage involved in overseeing their assets. A Revocable Trust allows you to keep your assets separate from your spouse’s. Further, your retain the right to manage and spend your assets as you wish, but you can allow your child the right to administer the trust independently.

Irrevocable Trust: An Irrevocable Trust is an excellent tool to keep assets you owned before the marriage separated from your new spouse’s assets. Irrevocable Trusts address many different problems.

For more, read about these other versatile trusts:

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If you have any questions about Estate Planning for Second Marriages or any other estate planning topics, please contact us to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate law and planning techniques clearly and concisely. We make it easy for you to understand Estate Planning so you can make the best decisions for yourself and your family.

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