Second Marriages Later in Life

Estate Planning

Second marriages later in life can be wonderful experiences and often should be encouraged, but they are not without some special considerations.

Often, older couples have to cope with adult children who cannot understand why mom or dad wants to remarry. By updating one's estate plan, many concerns related to the marriage can be minimized.

In second marriages later in life, there is often a desire to allow the estate of the first spouse to die to be available for a surviving spouse during his or her life. However, the deceased spouse often wants the estate to ultimately be distributed to his or her children upon the surviving spouse's death.

The best way to ensure that one's assets are available for a surviving spouse but ultimately distributed to one's children from a prior marriage is through the use of a trust. The trust can be created within a will (this is called a testamentary trust) or it can be created within a living trust (this is a trust created while one is alive).

Significantly, the trust maker would set forth the terms of the trust according to his or her wishes, and would select the trustee (or trustees) to manage the trust. Upon the death of the trust maker, the trustee would then manage the trust assets subject to those specified wishes of the trust maker.

For couples in a second marriage, it is often important to sign a marital agreement that states each spouse can dispose of his or her estate as desired. If such a document is not signed, a surviving spouse could legally attempt to "override" the estate plan of the deceased spouse.

Often, a given state's law will provide that a surviving spouse can "elect against the will." This means that a surviving spouse is entitled to a spousal share as specified by statute despite the fact that the will may provide differently.

Proper estate planning in these circumstances can be a great blessing. It can relieve significant concerns of adult children when a parent remarries later in life, and it can bring peace of mind to the parent, knowing that he or she has succeeded in protecting the financial legacy of the children.

Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney McKenna Olmstead with offices in Mesquite, St. George, Hurricane and Panguitch. If you have questions you would like addressed in these articles, you can contact him at (435)628-1615 or jmckenna@barney-mckenna.com.