Estate Planning for Second Marriages

Estate planning for second marriages can be complicated. Read below to learn about potential pitfalls and strategies you could discuss with an attorney.

Last updated on October 31st, 2018

What Are My Estate Planning Options If I’m In A Second Marriage?

Estate planning for second marriages in Virginia requires clear instruction and caution from both you and your partner. Because things could get messy very quickly, it’s best to have a hired attorney by your side to give you valuable information and inform you of your options and risks.

Potential Risks

It’s good to know the potential problems that may occur as a result of your second marriage estate plan.

Unlike first marriages, a second marriage usually opens new estate planning challenges between spouses. This occurs most often when both families don’t get along, or if there is a large difference in asset value between you and your new spouse.

For instance, you and your spouse may each have children from a previous marriage. In addition, you may want the property that you owned prior to your union to go directly to your children while your new spouse might have different plans.

One potential example could be when you want to leave your home to your children. Maybe you raised your children in your home, and you want those memories to pass to them.

But if in your estate plans you end up owning your family home in joint tenancy with your new spouse, and then you pass away, your children would not inherit. The right of survivorship would give the home to your spouse, regardless of what you may state in your will.

You may discover when these discussions arise that you and your new spouse may have wide differences in opinion regarding estate planning, and which family member should inherit what property. With multiple families and opinions in the mix, it becomes more difficult to settle on a clear and concise estate plan in a second marriage.

By working with an attorney, you and your spouse can come together to create an estate plan that works for everyone. An experienced attorney can advise you about unexpected outcomes that could result from inheritance rules with second marriages.

Below we discuss one of the tools you may include in your estate plan.

Marital Trust Strategies

One effective estate planning strategy that a lawyer may advise for couples in a second marriage is to setup a special marital trust. Depending on choices you make regarding your estate plan and tax consequences, an attorney could advise you to establish an AB Marital Property Trust, or even a Qualified Terminable Interest Property (QTIP) Trust.

One function of these potential trust strategies is the ability to give your spouse access to trust property after you have passed away, while avoiding a complete transfer of your estate to your spouse.

Your spouse will not own outright any property designated to pass into a trust. However, trust documents could be drafted to make sure trust property is used to financially support your spouse during her lifetime.

Then, after your spouse passes away, trust property would ultimately go to the final beneficiaries you designate in your trust documents.

This trust strategy gives you the option to support your second spouse with the assets and income of your estate, while ensuring that your children or other desired family members ultimately inherit the bulk of your wealth.

 

Conclusion

You should recognize that estate planning for second marriages can require a lot of attention to detail. It’s important to get this right. Because you would like to provide for your family, friends, children and your new spouse, it’s important that you seek legal counsel.

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Our articles provide general information about all of our practice areas. If you're looking for legal counsel specific to your situation, you'll need to talk to a lawyer.

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