If you’re anything like the typical person contemplating a second (or third) marriage, you are older, have children, have accumulated property, and have been enjoying a standard of living you would like to maintain. Below are a few important considerations for estate planning for a second marriage.
Put your financial cards on the table
Money is a major cause of stress in any marriage, but it can be especially so in a second one. You and your future spouse should discuss and agree on all important financial issues and formulate plans that, hopefully, you both can live with. Full disclosure is important, especially if you are considering a prenuptial or postnuptial agreement.
Protect your assets with a prenuptial or postnuptial agreement
This contract is important if you’re bringing assets into the marriage. By law, a surviving spouse has the right to take an “elective share” of the deceased spouse’s estate, regardless of what is in the will. An elective share is typically one-third or one-half of the elective estate. An elective estate can include almost all the decedent’s property, even property with beneficiary designations and property held in trust. If your surviving spouse takes his or her elective share, this may result in the unintentional disinheritance of your children or other heirs.
The only way to supersede elective share laws is with a prenup or postnup, in which both parties can waive their rights to the elective share. This way, you can minimize the chance that state law will interfere with your intended estate plans.
Revise your will and other estate planning documents
Remarriage does not revoke a will (although state law can trump a will). It is vital that you draft a new will in light of your new circumstances. Also, review and update other estate planning documents.
Providing for your children from a previous marriage
A big concern in many second marriages is providing for the new spouse without disenfranchising children from a prior marriage. Having your assets pass into a qualified terminable interest property (QTIP) trust can be part of the solution. With a QTIP trust, all trust income is used to support the surviving spouse while the principal is preserved for the children. And there’s a bonus: Assets passing to a valid QTIP trust qualify for the marital deduction, helping to minimize potential estate taxes at your death.
Dealing with wealth disparity
In second marriages, it’s not uncommon for one spouse to be wealthier than the other. If federal estate taxes are a concern, equalizing your estates so that you and your spouse can take advantage of both of your basic exclusion amounts ($5,430,000 in 2015) may be in order. Without equalization, you may lose valuable tax savings if the less wealthy spouse dies first.
Apportioning estate taxes
If you and your spouse have children from a previous marriage, you may want to plan for the payment of estate taxes in such a way that each child will bear the burden equally.
If you live in Philadelphia or the Main Line and are getting remarried, please call my office to discuss your estate plan. Click here to be connected.
