Estate Planning In a Second Marriage Is More than Just Making a Will

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Estate Planning For Second Marriage Couples Should Probably Include a Trust and Life Estate Scenario

If parents don’t make a will or do some serious estate planning in a second marriage, there will be a disaster for the children

Estate planning in a second marriage is almost as hard as finding the perfect spouse. Many couples never even make a will. After all, estate planning wasn’t a big deal when they each got divorced or were widowed.

In a divorce, all the property is divided up by court decree. If a spouse passes away, and there was no estate planning, the surviving spouse may have to go to court to get the deceased spouse’s property cleared. A court decree would have been issued in the “probate” process.

“If the first spouse died and everything was held in joint tenancy between the couple, there most likely wasn’t any probate problem,” explains Jonathan Cavender an attorney in Orem, Utah. “That means instantly upon the death of a deceased spouse, the surviving spouse would own all of the jointly held property. Even if the couple never created a will, everything will go to the surviving spouse, just like they wanted,” he continued.

In the second marriage, the same thing will occur if the new couple put everything in joint tenancy with the second spouse. However, that may not accomplish what they want. Cavender runs through the following scenario.

"Assume the new couple are in an auto accident. They didn’t make a will or do any other estate planning, except put all of their assets in joint tenancy. If one of them dies at the scene of the accident, instantly the surviving spouse will own all of the assets.

"Assume the surviving spouse dies on the way to the hospital. Because neither one had a will, the assets will now move through the “intestate” (meaning dying without will) probate process.

"The scenario gets expensive and convoluted here, because the intestate probate process will move all of the property to the second spouse’s heirs. His or her children will get everything. The children of the first spouse to die will not receive any of the assets."

Kristy Phillips, attorney and author of "Guaranteed Millionaire: Using the Law to Make Money and Protect Your Assets," adds, “If a couple doesn't make a will or do some serious estate planning in a second marriage, there will be a disaster for their children.”

She continues, “In a second marriage, it's critical to use a living trust and establish a life estate for the surviving spouse.” A life estate will allow the surviving spouse to have the benefit of the assets until he or she dies, then the property will be divided between the couple's heirs as they desire.

“A life estate probably works best when there isn’t a large estate. If one or both spouses have large estates prior to their getting married, they should probably separate their estates using a prenuptial agreement rather than using a life estate established by a trust,” Phillips said.

Planning to take care of one's assets before a second marriage is just as much a part of estate planning as trying to make a will and take care of personal assets after marriage. For more information on Estate Planning, visit Legalees.com.

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Lee Phillips
Legalees
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