Issue 16.17
Having served as an estate planning for twenty-one years, I have witnessed the remarriages of many clients. As a young attorney, I worried about these marriages later in life after a client’s spouse died. Now, after watching dozens of clients enjoy the mutual benefits of marriages later in life, I share the following article to help any that may be considering this decision.
Often, older couples have to cope with adult children who cannot understand why mom or dad wants to remarry. By updating one’s estate plan and executing a properly prepared Marital Agreement, many concerns related to the marriage can be minimized.
For couples entering or in a second marriage, it is often important to sign a marital agreement that states each spouse can dispose of his or her estate as desired. If such a document is not signed, a surviving spouse or a surviving spouse’s children, could legally attempt to “override” the estate plan of the deceased spouse.
Often, a given state’s law will provide that a surviving spouse can “elect against the will.” This means that a surviving spouse is entitled to a spousal share as specified by statute despite the fact that the will may provide differently.
In second marriages later in life, there is often a desire to allow the estate of the first spouse to die to be available for a surviving spouse during his or her life. However, the deceased spouse often wants the estate to ultimately be distributed to his or her children upon the surviving spouse’s death.
The best way to ensure that one’s assets are available for a surviving spouse but ultimately distributed to one’s children from a prior marriage is through the use of a trust.
When you draft this trust, you can provide that all or only a part (like a house) of the estate is to go to your new spouse. Often, as the second marriage matures, more is provided in the life time trust.
These are a few of the items to consider in second marriages. Proper planning in these circumstances can be a great blessing. It can relieve significant concerns of adult children when a parent remarries later in life, and it can bring peace of mind to the parent, knowing that he or she has succeeded in protecting the financial legacy of the children.
Jeffery J. McKenna is a local attorney serving clients in Utah, Nevada, and Arizona. He is a shareholder at the law firm of Barney & McKenna, with offices in St. George and Mesquite. He is the former President of the Southern Utah Estate Planning Council. If you have questions, you can contact him at 435 628-1711 or jmckenna@barney-mckenna.com.