Redo Your Estate Plan, Including Your Last Will and/or Revocable Trust Before You Get Remarried
If you are getting remarried, of course, you want a happy ending, but it is also important to focus on the reality of your past married life and expectations for your new life and your estate plan.
If you created an estate plan during your first marriage, things may now be more complicated for you – especially if you have children from your first marriage or have more assets and income and a greater “net worth”. I cannot overstate how critical it is for you to create a new estate plan when you are either: 1) about to enter into in a second (+) marriage, 2) have already remarried and want to leave an inheritance to others besides your new spouse, in particular, children and your grandchildren from your prior marriage(s). Let me explain my thoughts and the strategies I often recommend to clients in a second or multiple marriage(s).
How to Effectively Use a Will and Trust for Second Marriages
Fredrick P. Niemann’s Recommendations to Clients in Second (+) Marriages
- Take an inventory. The first thing you and your new spouse should do is each take an inventory of your assets and debts and share it with each other. Don’t forget to include life insurance policies and retirement plans in your inventories. It is important to be open and honest about money if you want to prevent bad feelings in the future.
- Decide how you want to handle finances. Once you both know what your finances are, you need to decide if you want to combine (or not combine) assets when you are married. For example, if one spouse is selling a house and moving in with the other spouse, will he or she contribute to the cost of the house? If one partner has significant debt, you may not want to combine finances or make any joint purchases. These decisions need to be made upfront so everyone is clear and knows what your intentions are.
- Decide what you want to happen when you die. You and your (future) spouse need to figure out where each of you wants your assets to go when you die. If you have children from a previous marriage, this can be a complicated discussion. There is no guarantee that if you leave your assets to your new spouse, he or she will provide for your children after you are gone. There are a number of options to ensure your children are provided for, including creating a trust for your children, making your children beneficiaries of life insurance policies, or giving your children joint ownership of property. Even if you don’t have children, there may be family heirlooms or mementos that you want to keep in your family. Again, open discussions can prevent problems in the future.
- Consult a New Jersey estate planning lawyer. Even if you don’t have a lot of assets, you should consult an attorney, especially if you have children. You will definitely need to update your will. You may also need to update or create other estate planning documents such as a durable power of attorney and a health care proxy. If you have significant assets, a prenuptial agreement may be appropriate. In addition, the attorney can help you decide if a trust is necessary to protect your interests.
- Change your beneficiaries. You may want to change the beneficiaries on your life insurance policy, investment account(s), bank account(s), annuity, and/or retirement plan(s). If you are divorced, however, you may not be able to change some of the beneficiaries. Bring your divorce decree with you to the attorney so he or she can make sure you do not violate the divorce judgement and/or property settlement agreement. If you can’t change your beneficiaries, you may want to reorganize your finances that will include your new spouse.
The most important thing to remember is to be open and honest with your future spouse and your family members about your wishes.
Why Second Marriages and Blended Families with Step-children Pose Unique Estate Planning Concerns
What are the estate planning considerations in a second marriage later in life?
Many widows and widowers simply do not like living alone after their beloved spouse dies or a divorce happens later in life. Widows and widowers are increasingly likely to decide that a second marriage is an excellent way to avoid spending their aging years alone. As the life expectancy of people in the United States dramatically increases, the reality of second and third marriages becomes more likely. As widows and widowers start to meet potential new partners and decide to get remarried, they need to become more knowledgeable about their existing estate plan and changes that should be made to their plan(s).
A remarriage can be one of the best decisions at this stage of life, or the worst. A remarriage later in life often creates a unique set of legal questions. For example, many older clients take for granted that their adult children will inherit from them when they pass away. The reasoning behind this assumption is because the majority of their property and life have been spent with their previous spouse, who was a co-parent to their children, and the one who helped build or sustain the family’s assets.
However, a new marriage means that marital property may now be governed by the laws of the state of New Jersey if they reside in NJ. If there is no prenuptial agreement, then the surviving spouse may, under the laws of New Jersey, inherit at least one-third of the estate of their deceased spouse. This means that the adult children from the first marriage might be in for a rude awakening. A large part of the children’s inheritance might be “swallowed up” by the second spouse’s right to inherit one-third of his or her spouse’s estate.
The estate planning issues created by second marriages should not be taken lightly. It is important to talk these things through with your future spouse and your attorney. Chances are, he or she also wants to make sure that their children receive assets upon their death. If you don’t have a frank discussion with your soon-to-be spouse, you may end up causing your loved ones a great deal of heartache and resentment as they struggle to figure out why you did or did not leave your estate to them.
What are the elective share rights of a surviving spouse under NJ law?
Today you may learn a new term called the “New Jersey elective share”. It is a powerful law that mandates that a portion of a married person’s estate goes to their surviving spouse.
If a spouse dies, then under NJ law, a surviving spouse may elect to take a one-third share of the deceased spouse’s estate. This is called the elective share. Basically, a spouse can’t be disinherited. The surviving spouse has a right to receive his or her elective share. The only way that a surviving spouse can be partially or completely disinherited is through a prenuptial or post-marital agreement where both spouses agree to waive any claims to an elective share to each other’s estate.
An elective share claim against a deceased spouse’s estate includes property individually owned as well as most assets with beneficiary designations such as bank accounts, securities, 401K’s, IRA’s, interests in jointly-held property, annuities, and in trusts, the cash value of life insurance, even property transferred to a child during the one-year period preceding your death. In other words, you cannot easily ignore your spouse’s right(s) to his or her elective share. Many clients ask me how the surviving spouse will be able to claim his or her share if the assets are left in trust for a child. The answer is that the surviving spouse can file a probate proceeding and force the child to return the assets to satisfy the elective share obligation.
Why is it important to have a prenuptial agreement for a second marriage?
Due to an increased life expectancy, a 50% (or higher) divorce rate, and an increasing number of second marriages, prenuptial agreements are now widely accepted. It is very important for individuals to approach the idea of a prenuptial agreement with an open mind. It must be emphasized that a prenuptial agreement does not mean that you are planning to get a divorce, or that you do not trust your new spouse. Instead, couples are now recognizing the seriousness of their upcoming commitment of marriage. Moreover, couples are now communicating their concerns for the future financial security of their other relatives and are expressing their respect for the hard-earned assets and accomplishments of their future spouse.
Although many people look at a prenuptial contract as rather “unromantic,” the reality is that individuals in middle and later life are likely to have more significant assets than younger couples. Additionally, older clients often have important financial obligations in the form of alimony or child support payments, hard-earned estates they wish to leave to their children, and emotional baggage from their previous marriages. In order to provide a solid foundation for their future marriage, clients should consider sorting through their finances. They should also create a plan for how they will merge their economic as well as their emotional lives.
No one should jump into the serious business of marriage. There are some very harsh consequences that can occur if a person does not carefully plan for economic ramifications. Life is not a romantic experience. At this stage of life, single people should carefully prepare a detailed and comprehensive prenuptial agreement that addresses every aspect of their financial life.
Second Marriages and Financial Liability for Nursing Home and Long Term Care Costs
Beware… if you remarry, you cannot escape personal financial responsibility for a nursing home and long term care costs of your spouse regardless of a prenuptial agreement. Federal and NJ law clearly mandate that if you are married (even for one day) both spouses are jointly liable for the costs of long term care for the other until death or divorce. You may have amassed two million dollars before you married your second spouse, but if he or she requires a nursing home at a cost of $14,000 per month, you are responsible for their payment to the nursing home. To learn more about nursing home obligations and eligibility, please go to our dedicated Medicaid page here.
We can help you in all aspects of NJ Estate Planning, asset protection and tax reduction law when a second or successive marriage is involved. Don’t wait until it’s too late to plan for the future. Call Fredrick P. Niemann, Esq. toll-free today at (855) 376-5291 or e-mail him at firstname.lastname@example.org today and speak to him personally. He welcomes your call.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Last Wills Attorney
NJ Estate Planning Attorney serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County,Union County, Somerset County, Hudson County, Passaic County