Redo Your Estate Plan, Last Will and Trust Before You Get Remarried
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Last Wills Attorney
If you are getting remarried, you obviously want to celebrate, but it is also important to focus on less exciting matters like redoing your estate plan. You may have created an estate plan during your first marriage, but this time it will probably be more complicated–especially if you have children from your first marriage or more assets. I cannot over emphasize how critical it is for you to create a sound Estate Plan when you are in a second(+) marriage and want to leave an inheritance to your children of a prior marriage. Let me explain to you some well thought out options and strategies I routinely use.
How to Effectively Use a Will and Trust For Second Marriages
The following are some pointers for ensuring your interests are taken care of when you remarry:
- Take an inventory. The first thing you and your new spouse or partner 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 know what your finances are, then 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 elder law and 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 children’s interests.
- Change your beneficiaries. You may want to change the beneficiaries on your life insurance policy, annuity, and/or retirement plan. 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 buy additional life insurance or retirement plans 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. As widows and widowers increasingly meet and decide to get remarried, they need to be aware of important estate planning considerations. As the life expectancy of people in the United States dramatically increases, the reality of second and third marriages becomes more likely. Widows and widowers are increasingly likely to meet and decide that a second marriage is an excellent way to avoid spending their golden years alone.
A remarriage can be one of the best parts of your 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 often a co-parent to those children, and the one who helped to build or sustain the family assets.
However, a new marriage means that the marital property is governed by the laws of the new marriage. If there is no prenuptial agreement, then the surviving spouse will, under the laws of New Jersey, inherit at least one-third of the estate. 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 her new husband’s estate.
The problems that are created by second marriages should not be taken lightly. It is important to talk these things through with your future spouse. Chances are, he or she also wants to make sure that adult children receive assets. If you don’t have a frank discussion with your would-be spouse, you may end up causing your loved ones a great deal of heartache and confusion as they struggle to figure out what would be best and what you would have wanted.
What is the elective share rights of a surviving spouse under NJ law?
Today you’re going to learn a new word 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, under NJ law a surviving spouse may elect to take a one-third share of the deceased spouse’s estate. This is called an elective share. Basically, a spouse can’t be disinherited. The surviving spouse has a right to the elective share. The only way that a surviving spouse can be completely disinherited is through a prenuptial agreement, where both spouses can agree to waive any claims to an elective share of each other’s respective estates.
An elective share estate includes not only property in your name alone, but also most assets with beneficiary designations such as bank accounts, securities, IRA accounts, your interest in jointly-held property, annuities, certain interests in trusts, the cash value of life insurance, and even property that you might transfer to a child during the one-year period preceding your death. In other words, you cannot easily ignore your spouse’s rights 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 in the United States, and an increasing amount 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 law and NJ law clearly mandates that if you are married (even for one day) both spouses are jointly liable for the costs of long term care of the other until or unless divorced. You may have amassed two million dollars before you married your second wife, but if she requires a nursing home at a cost of $12,000 per month, you are responsible for her payment to the nursing home.
If you require more information on this subject,
go to www.njmedicaidattorney.com.
We can help you in all aspects of NJ Estate Planning, asset protection and tax reduction law. 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 email@example.com today and speak to him personally. He welcomes your call.
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
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