Second (or third or fourth) marriages often require careful balancing between the needs of the surviving spouse and the needs of the children from a previous marriage.
It takes a certain kind of courage to embark on new marriages after being married previously, even when there are no children from prior marriages. Regardless of how many times you walk down the aisle, couples should take care of the business side of their lives before saying “I do” again.
Full disclosure of each other’s assets, overall estate planning goals and plans for protecting assets from the cost of long-term care should happen before getting married. The discussion may not be easy, but it’s necessary: are they leaving assets to each other, or two children from a prior marriage? What if one wants to leave a substantial portion of the wealth to a charitable organization?
The first step recommended with remarriage is a prenuptial or prenup, a contract that a couple signs before getting married, to clarify what happens if they should divorce and what happens on death. The prenup typically lists all of each spouses’ assets and offers a “Waiver of the Right of Election”, meaning they willingly give up any inheritance rights.
If a couple does not wish to have a prenup, they can use a Postnuptial Agreement (postnup). This document has the same intent and provisions as a prenup, but it’s signed after they are legally wed. Over time, spouses may decide to leave assets to each other through trusts, owning assets together or name each other as beneficiaries on various assets, including life insurance for investment accounts.
Without a pre-or postnup, a portion of the decedent’s spouse’s assets will go to the surviving spouse upon death. State law will provide for the spouse’s needs with the possibility of the children receiving little or possibly nothing.
The couple should also talk about long-term care costs, which can decimate a family‘s finances. Long-term insurance is the ideal plan. If either of the spouses has not secured this insurance and cannot get a policy, an alternative is to have an elder law attorney create a Medicaid asset protection trust (MAPT). Once assets have been owned by the trust for five years for nursing home benefits and 2 1/2 years transfer period for home care paid by Medicaid they are protected from long-term care costs.
When applying for Medicaid, the assets of both spouses held during their lifetime continue to be at risk, regardless of a pre-or post nup documents.
Consider the use of trusts in your planning. Although a will conveys property, assets must go through probate, which can be costly, time consuming and leave your assets open to court battles between heirs. Trusts avoid probate, maintain privacy and deflect any disagreements, especially among blended family members.
Creating a trust and placing the joint home and any assets, including cash and investments, inside the trust is a common estate planning strategy. When the first spouse dies, a co-trustee who serves with the surviving spouse can prevent the surviving spouse from changing the trust and by doing so, protect the children’s inheritance. Let’s say one of the couples suffers from dementia, remarries or is influenced by others – – a new will could leave the children of the deceased spouse with nothing.
Second marriages bring up many sensitive issues which should be addressed. Prior planning with an experienced estate planning attorney can protect the couple and their children and provide peace of mind for all concerned.
Contact our firm early on and we can help you start your new marriage on the right foot.