Estate Planning for Second Marriages… Get It Right The Second Time Around!

If you are planning a second marriage you’ve likely learned some things the hard way, as they say.  So you definitely don’t want to repeat the same mistakes this time around. Estate Planning for a Second Marriage is a must! Here are just a few typical estate planning issues that arise when considering Estate Planning for a Second Marriage.

What to do Before the Wedding

Prenuptial Agreements: Marriage is about love, but it can also become about money and assets if trouble strikes. You now know firsthand that not all marriages are successful. Consequently, a Prenuptial Agreement is an option you should consider. If you don’t have a Prenuptial Agreement, the State that you will reside in as a couple will establish who gets what in the event of a marital dissolution; UNLESS, you have a properly drafted Prenuptial Agreement that is carefully tailored to your unique circumstances. We can help guide you to an experienced attorney that can draft a Prenuptial Agreement for you that will complement your Estate Plan for your new marriage.

 Irrevocable Trusts: If you have children from your prior marriage, you may have assets you wish to segregate for their benefit. An Irrevocable Trust is an excellent tool to hold assets for your children, sheltered from their creditors and divorces. Forming and funding this trust before your wedding is a great strategy to keep these assets from becoming entangled as a marital asset in your second marriage. In addition, this preemptive act helps protect these assets from your future creditors and from your new spouse if your second marriage is unsuccessful.

  Revocable Trusts: A Revocable Trust for you and a separate one for your new spouse can be useful. You can draft your new trust to cover certain assets for you, and certain assets that your new spouse will claim. You will want to document that you entered the second marriage with those particular assets you want to keep separate from your new spouse. Further, you will need to maintain separate these personal assets from your new marriage assets that will develop over the life of your second marriage. This is a complicated matter and needs to be addressed with an experienced Estate Planning attorney. Call The Mendez Law Firm at (407)380-7724 or email us at mail@themendezlawfirm.com to schedule a FREE Estate Planning consultation.

 Waiver of Spousal Elective Share: Another option available before the marriage is a Waiver of Spousal Elective Share. This document is signed by your spouse-to-be and will waive certain rights he or she will have to your estate assets in the event of your death. In Florida, a surviving spouse is entitled to a 30% elective share, plus other rights. A surviving spouse can waive those rights in a carefully drafted document. This is an important topic that you MUST discuss with your Estate Planning Attorney.

AFTER THE WEDDING

Estate Planning: Marriage allows spouses to work as a team. Married couples may use Estate Planning methods to shelter assets for the surviving spouse. Further, a married couple can use their status to create protection for children and step-children that would not otherwise exist. Estate Planning can protect your surviving spouse, beneficiaries, and heirs by: (1) planning for illness or disability; (2) preserving your estate; (3) avoiding probate; and (4) avoiding family disputes that can end up costing thousands of dollars and unending family animosity.

Typical Documents You Should Have

Last Will and Family Trust: Without a Last Will or Family Trust, the State that you reside in will decide who your assets will pass to upon your death. Call The Mendez Law Firm at (407)380-7724 or email us at mail@themendezlawfirm.com to schedule a FREE Estate Planning consultation.

Funeral Arrangements: Emotional disputes frequently arise between children from first marriages and new spouses regarding funeral arrangements and the location of your burial. Naming the right person or persons to control these decisions can avoid conflict. We can help you draft Funeral, Memorial, and Burial Instructions given your new marriage circumstances. 

Financial Power of Attorney: If you are unable to make decisions for yourself because of some accident or medical issue, who makes your financial decisions? This person may be your new spouse, your children, or even others you choose. Now that you have remarried, it is time to assess who you will trust with this important responsibility. Create a Financial Power of Attorney with clear directions specified about the financial powers that you will grant to either: (1) your new spouse; (2) your children; or, (3) someone else you that you believe can handle this financial responsibility in the event of your incapacity. 

Health Care Power of Attorney and Living Will: If you are not competent to make your medical decisions, who decides which doctor treats you or the withdrawal of medical care? Remarriage requires reviewing this power. Your Living Will and Health Care Power of Attorney can even control who visits you when you are ill as well as who is chosen to serve as your doctor; select a person who can work well with all members of your blended family. 

Revocable Trust: For married couples, a Revocable Living Trust has many purposes. But, they are especially useful for those in second marriages who wish to have children from the first marriage involved in overseeing their assets. A Revocable Trust allows you to keep your assets separate from your new spouse. Further, a Trust can be drafted so that you retain the right to manage and spend your assets as you wish while you are alive, and you can even grant your children the right to handle the administration of your estate when you pass away.

Irrevocable Trust: An Irrevocable Trust is an excellent tool to keep assets you owned before the marriage separated from your new spouse’s assets. Irrevocable Trusts are very helpful to address many different problems that can arise in a second marriage, but can be complicated to draft. 

Other Trusts You May Need To Consider:

• Spousal Limited Access Trust
• Irrevocable Life Insurance Trust
• Disclaimer Trust
• Dynasty Trust
• Grantor Trust
• Grantor Retained Annuity Trust
• Qualified Domestic Trust
• Qualified Personal Resident Trust
• Education Trust
• Charitable Remainder Trusts
• UniTrust
• Bypass Trust
• Credit Shelter Trust
• Marital Trust
• AB Trust

But What if You Do Nothing?

Spousal Elective Share: If you have not addressed these rights in your Estate Planning Documents, then each State generally gives a surviving spouse the right to claim a portion of their deceased spouse’s estate.  Whether you meant for that to happen or not!

In Florida, as mentioned above, a surviving spouse may exercise an Elective Share of one-third of the estate property. The Elective Share applies even if your Will excludes your spouse. The exception is if your surviving spouse has signed a properly drafted waiver of those rights, as discussed above, or unless waived in a Prenuptial Agreement as we also discussed above. 

Having No Last Will or Trust at Death:  If you have not executed a Last Will or Trust, then your assets will pass under Florida Law (Intestacy). This undoubtedly WILL NOT be what you had in mind. Under Florida Intestacy Law, and without a Last Will or Trust prepared in advance, your surviving spouse, children, or step-children may receive more than you ever intended. Drafting a Last Will and Trust will help you prevent that from ever happening.

Your East Orlando Business Law attorney can review your Estate planning questions with you. Call The Mendez Law Firm at (407)380-7724 or email us at mail@themendezlawfirm.com . The Estate planning consultation is FREE, and there is NO obligation. 

Conveniently located in the East Orlando area. Call The Mendez Law Firm TODAY at (407)380-7724 or email us at mail@themendezlawfirm.com to schedule your FREE Estate Plan consultation. Copyright © 2020. The Mendez Law Firm, L.L.C. All rights reserved.