Second marriages have been called a triumph of hope over experience. Those entering marriage for the second time, need to make decisions that they may not thought twice about the first time around.
Estate planning for second and subsequent marriages takes a good deal of balancing, as couples decide how they want to distribute their assets to children and new spouse. A thoughtful article from nj.com “When you have kids, who should get inheritance from second marriage?” explores some of the larger issues.
Each situation is different, with dynamics ranging from smooth Brady Bunch blends to antagonistic behavior that extends for years. If one spouse left all of his assets to his new wife, and nothing for his children, you can be sure that won’t foster great relationships. However, even if a new wife created a will that gave her husband everything with the understanding that he would make sure to give all or some of her assets to her children from her first marriage, there’s no guarantee that would happen. If one of the partners should marry a third time, then the heirs could end up being children from that marriage.
This can be a dilemma for the husband in this case. First, let’s look at whether he can unilaterally cut the new wife out of his will. As with most legal issues, the answer depends. However, New Jersey does have some laws to protect spouses from this situation.
In that state, the new wife may be able to claim an elective share. This entitles a surviving spouse to a third of the deceased spouse's estate—even if the deceased's will states that the survivor gets nothing. But this law is needs-based, so if she has her own property, either acquired independently or inherited from her spouse (including life insurance benefits) that’s more than the elective share amount, then she won’t be entitled to anything beyond what is provided under the will. That could be nothing.
New Jersey also has a law concerning an "omitted spouse." If your spouse executed a will before the marriage that leaves everything to his children but has no provisions for a future spouse, then the new wife would be entitled to a share of the deceased spouse's estate under the state’s intestacy laws. Those laws typically only apply when someone dies without a will. However, they would also apply in this situation. In that case, the new wife would be entitled to more than 50% of the husband's estate and his children would inherit the rest.
The husband has several ways to address the situation. The simplest is to leave some of his estate to the new wife and a portion to his children. Another solution is for the husband to include a trust for the new wife’s benefit in his will. This spousal trust would provide her with all of the income from the trust, as well as principal distributions necessary for her health, education, maintenance, and support, known as the ascertainable standard. She’s entitled to principal distributions to keep her standard of living at the same level it was before the husband's death. Anything left in the trust when she passes away, would go to the step-children. This trust typically includes the couple's home, so that the surviving spouse can stay there so long as she lives. The home can also be addressed by granting the survivor spouse a life estate deed.
For step-children, especially when one or both spouses are wealth, a prenuptial agreement is another layer of protection.
Speaking with an estate planning attorney, who has worked with second and subsequent marriages, before you walk down the aisle, will help clarify how both members of the couple feel about how their assets should be distributed. Doing so may raise sensitive issues, but this is better addressed before, and not after, you are married.
Reference: nj.com (September 6, 2018) “When you have kids, who should get inheritance from second marriage?”