Second Marriage Estate Planning requires a more complex look at your current estate plan. A second marriage could be great for you. Many people find that after a prior marriage a second marriage will provide them personal comfort. But, the estate planning gets more complicated particularly if either of you have any children from your previous marriages. Estate planning is a thing we need to update on yearly basis. Its even more important in the case of second marriage estate planning.
You Cannot Always Disinherit Your New Spouse
Under Oklahoma law, your second spouse can receive some of your assets at your death unless they have agreed to waive those assets (their inheritance) through a post-nuptial or pre-nuptial agreement. Also keep in mind that your spouse might pursue an elective share rather than take what you give them through your will, but this typically only happens if the elective share provides a greater value.
Problems With A Second Marriage When There Are Children From A Previous Marriage
It is somewhat common for a spouse to plan to make their new spouse the beneficiary of their assets, especially in cases of second marriages that have worked well for a while. But naming your new spouse as your sole beneficiary could cause both your step-children and natural children from your current marriage and your children from your prior marriage to receive nothing. Entrusting your second spouse to benefit your children from a previous marriage can be a tall order.
Perhaps your current spouse is amicable with your ex and the children that you and your ex had together. That doesn’t mean that your current spouse will keep their interests in mind. Instead, the new spouse might spend the entirety of your assets on themselves and for any children who you have together – not your children from a prior marriage or for others whom you wish to benefit somehow at your incapacity or death.
Martial Trusts For Second Marriages
If you have children from a prior marriage, and you have a second spouse, then there is a way for you to ensure that both your second spouse and your children from your prior marriage are taken care of. To accomplish this, you’ll want to consider a marital trust. This type of trust allows you to select a trustee – which could be your spouse – to manage your assets and distribute those assets to beneficiaries at your death or incapacity all according to your specific instructions.
A QTIP trust – a type of marital trust – allows a surviving spouse to get income from the trust each year, but they don’t get to control the trust’s principal. Without having control of the principal, a surviving spouse cannot relocate assets that the decedent spouse designated for their own children.
Some martial trusts can even contain remarriage clauses where if the surviving spouse remarries, then they do not get a share of the trust that was intended for them as a surviving spouse, where the share instead goes to different beneficiaries.
To the extent that you wish to provide your surviving spouse with greater control than a QTIP trust allows for, you could consider marital trusts which provide your spouse the ability to change beneficiaries or even remove principal from the trust.
Trusts Can Provide Additional Key Benefits:
· Avoiding Probate: You can avoid a legal process known as probate for assets contained in your trust at your death. Avoiding probate can save you time and money.
· Creditor Protection: The assets which are for the benefit of your surviving spouse and your children could be protected against creditors and judgement holders who might otherwise access the trust assets.
· Avoiding Estate Taxes: At your death, a marital trust can enable you to avoid estate tax exposure. The IRS allows the estates of decedents to pass their unused exemption to the surviving spouse. This can be accomplished through the marital trust.
If you effectively plan, you can ensure that your children and your surviving spouse, among other loved ones receive your assets according to your specific instructions. But there is more to it when it comes to estate planning, including the use of wills, powers of attorney and other instruments. For this reason, you’ll want to touch base with an estate planning attorney who can provide you with guidance and direction concerning the proper estate planning for your second marriage.
Tulsa Oklahoma Estate Planning Lawyer
Kania Law Office estate planning lawyers are well-versed on issues that pertain to second marriages, including what should be done for purposes of estate planning. To consult with an experienced estate planning attorney about your situation, call (918) 743-2233 or contact us online.