Second Marriage Issues – Part 1

I have written often in my blog about second marriage issues.  The reason is the potential that such marriages present different heirs for each spouse.  In some cases one spouse has children from a previous marriage and the other does not.  In other cases, the second marriage results in children as well as children from the first marriage.  

In many of the second marriage cases in our office, the spouses decide they wish to treat the children from both sides equally.  For example, if they each have 2 children from a previous marriage, they treat each side’s children equally as to their entire combined estate and split everything 4 ways after both of them pass away.  The outcome is no different than cases where there is one marriage with children and no offspring from any previous relationship.

While I would say a majority of our clients in second marriages choose this route, there is a significant minority that does not.  For example, there may have been an uneven balance of assets that each spouse came into the marriage with.  The spouse with more assets may want to leave those assets to his/her children but also leave enough to the surviving spouse to be able to support that spouse in the life style they were accustomed to.  

There may also be a prenuptial agreement in place in which the parties agreed not only on how to split their assets in the case of divorce, but also what rights each spouse has to the other’s estate upon death.  They are, however, still free to override that agreement if they so choose.

Still, problems may arise after death if the deceased spouse’s children were not made aware of these changes or how their parent designed their estate plan.  The fact that the will may not be consistent with the prenuptial agreement or with what the parent did tell the children may pose problems.  Additionally, if there is non probate property – such as property held jointly between the spouses with right of survivorship or there is a payable upon death designation – this would override what the will or the prenuptial agreement says.  All these potential issues make for complications after death.

Next week, I’ll show you what I mean.