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Second Marriage and Estate Planning

Law Offices of Lawrence H. Nemirow PC Feb. 1, 2023

Planning ahead is always beneficial when entering into a second marriage—especially when it comes to estate planning matters. Unfortunately, many people underestimate the importance of creating an estate plan when getting remarried, which can have serious and unintended ramifications down the line.  

If you are entering into a second marriage, there are certain things you need to consider to secure your financial future and the future of your children. As an estate planning attorney at Law Offices of Lawrence H. Nemirow PC, I can guide you through the process of creating an estate plan in a second marriage and help you address the potential legal challenges. From my office in  Los Alamitos, California, I proudly serve individuals and families throughout Los Angeles County and Orange County, including Long Beach, Cerritos, Newport Beach, Santa Ana, Huntington Beach, and Anaheim.  

Rights of a Surviving Spouse  

In California, if an individual dies without leaving a will (intestate), their assets are subject to the law of intestate succession. This law determines who is entitled to inherit the deceased’s property. In general, the first priority is given to the surviving spouse, followed by children and grandchildren, parents, siblings, nieces and nephews, grandparents, aunts and uncles, cousins, or more distant relatives.  

When it comes to intestate succession in California, the rights and entitlements of a surviving spouse are determined by whether or not there are any other heirs involved. If there are no other heirs—for example, if all children have predeceased the deceased—the entire estate will go to the surviving spouse. On the other hand, if there are other heirs—such as children—the surviving spouse may still receive up to ½ of their estate depending on certain conditions.   

If any part of an estate passes directly from a decedent without going through probate court (non-probate transfers), then those assets do not count towards calculating what portion of an estate should be given to a surviving spouse under intestate succession law. Non-probate transfers might include jointly held real estate or accounts with designated beneficiaries or pay-on-death designations (POD). In this case, only probate assets would be included in determining what portion should be given to a surviving spouse under intestate succession law.   

Things to Consider When Creating an Estate Plan in a Second Marriage  

Let’s take a closer look at the things to consider when creating an estate plan in a second marriage:  

  1. Prenuptial agreement. A prenuptial agreement is a contract between two partners that outlines the terms of their financial relationship during marriage and upon death or divorce. This document can provide clarity on each partner’s individual goals and expectations, as well as how they want to handle conflicts or disagreements that may arise during the course of their relationship. It can also provide protection to both parties in case one spouse passes away or if they decide to end the marriage.  

  1. Inheritance of children. In a second marriage, it is important to consider how assets should be distributed to any children from previous marriages/relationships in order to ensure that everyone receives their fair share of inheritance after death. This includes deciding which assets will go directly to the child (such as their home or car) and which ones will go into trusts (such as investments). Parents may also want to set up trust funds so that their children can receive money over time instead of all at once.  

  1. Setting up trusts. Setting up trusts is an effective way of protecting assets for future generations by ensuring that money or other resources are managed appropriately. Trusts offer flexibility with regard to how assets can be managed and can help protect those assets from creditors, lawsuits, or taxes down the line. 

  1. Choosing beneficiaries. Choosing beneficiaries is another crucial step in creating an estate plan in a second marriage, especially if there are any children from previous relationships/marriages who need consideration when distributing assets after death. This involves allocating specific amounts of money or property for certain individuals based on their needs and desires so that everyone receives what they are owed under the law in accordance with your wishes.  

  1. Planning for long-term care costs. As we age, our needs change—especially when it comes to healthcare costs like long-term care expenses associated with aging, such as medical bills, nursing home bills, assisted living costs, etc. It is essential for couples entering into second marriages to plan ahead for these potential costs by discussing how they want them handled financially so that neither party has an undue burden placed upon them if something were to happen unexpectedly.  

Taking these steps seriously before tying the knot again will ensure that both parties are protected financially, no matter what life throws your way.  

Common Mistakes to Avoid  

Let’s look at some of the common mistakes to avoid when creating an estate plan in a second marriage. 

  • Failing to remove your ex-spouse. One of the most common mistakes made by individuals entering into a second marriage is failing to remove their ex-spouse from their existing estate plan documents. This includes wills, trusts, POAs (power of attorney), and other beneficiary designations. If you fail to remove your ex-spouse from these documents, then he or she may still have legal rights over your assets after you get remarried. This could lead to serious complications down the line and can even void any changes you make after remarrying if your ex-spouse contests them in court.  

  • Failing to add your new spouse. Another common mistake is failing to add your new spouse as a beneficiary or executor in your estate planning documents. This oversight can be particularly problematic if something unexpected were to happen and you die before making any changes to your existing documents. In this case, any assets not designated specifically for your new spouse would go back into probate and be subject to state inheritance laws instead of passing directly onto him or her as intended.  

  • Not changing your will or trust. Your existing will or trust may need some minor revisions depending on how it was drafted prior to getting married again, but many people forget this step entirely. It’s important that you review these documents carefully with a lawyer before making any changes so that any potential issues are addressed upfront.  

  • Not seeking legal counsel. Finally, one mistake many people make is not seeking legal counsel when creating an estate plan in a second marriage. While it may be tempting just to draft up some new documents yourself using online templates or DIY tools, this approach could end up costing more down the road if something goes wrong with your plan later on due to incorrect language or omissions in your documents. Working with a qualified attorney ensures that everything is done correctly right from the start, so you don’t have any unpleasant surprises down the road.  

These considerations can be overlooked in the excitement of getting remarried—but they’re too important to ignore. 

Personalized Legal Counsel  

When entering into a second marriage, it is crucial to plan for the long term. As an estate planning attorney, I can provide you with the personalized advice and guidance you need to address your concerns and legal challenges when entering into a second marriage. Contact Law Offices of Lawrence H. Nemirow PC today to request a consultation and discuss your unique situation.