How to Plan for the Second Family

How do you ensure that both your new spouse and your children from your first marriage receive an inheritance if you die before your newly married spouse does? Who gets the house — your new spouse or your children? How will your new spouse get by financially if you choose to provide an immediate inheritance for your children?

You want to make sure that your children won’t be disinherited if you leave everything to your new spouse, who then wills the money elsewhere. Your simple reciprocal will may be fraught with risks that could cause your children to be disinherited.

Here are some solutions:

Pass your assets to a revocable trust agreement that is funded during your life through your will or through beneficiary designations, or through a combination. The trust is revocable at any time, so you can change your mind. On your death, the trust becomes irrevocable and would benefit your spouse and children.

• You may invest the assets to make them income-producing and pay all the income to your new spouse for the rest of their lifetime, while preserving the principal for your children.
• On your spouse’s death, the remaining principal of the trust goes to your children outright or in further trust.
• You can name an independent trustee who’ll have the power to pay a portion of the principal to your new spouse if there’s a need.
• You can have your second spouse’s interest in the trust end upon remarriage.

Through proper planning, you can maintain control over your assets to prevent disinheritance of your children, while still providing for your spouse.

If you don’t make specific arrangements, here is a broad look at what may happen to your assets, although this may vary with state law and other situations:

• Your second spouse typically will be able to claim one-third to one-half of the assets covered by your will, even if it says something else.
• Joint bank or brokerage accounts held with a child will go to that child.
• Your IRA and 401(k) will go to whomever you’ve named as beneficiary. Contrary to popular belief, wills do not supersede these beneficiary elections.
• If you want some other arrangement, you and your spouse must have a written prenuptial or postnuptial agreement that meets your state’s inheritance laws. You’ll need to change beneficiary forms.
• If you own a house, you may still leave it to your kids but give your spouse the right to occupy it for life. State law may govern this situation.
• In many states, married people have a legal duty to support each other. If your second spouse eventually needs long-term care, their assets and yours might be tapped to pay the bills.

These financial issues merit consideration — competing interests of your adult children and your second spouse may induce headaches. Suppose cognitive impairment makes your spouse, widow or widower prey to con artists and an assortment of financial liabilities. And as noted, state law can make a big difference in how your estate is handled. In the case of blended families, it’s always wise to get professional help even as you tie the knot.

Check out a related post: A Few Unusual Trusts

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This website is not intended to be a source of solicitation or legal advice. General information is made available for educational purposes only. The information on this blog is not an invitation for an attorney-client relationship, and website should not be used to substitute for obtaining legal advice from a licensed professional attorney in your state. Please call us at (626) 403-2292 if you wish to schedule an appointment for a legal consultation.

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William Hayes

As an attorney in private practice in Los Angeles County, California William Hayes provides extensive estate and tax planning services to individuals and businesses in Los Angeles, Pasadena, Glendale, Burbank and surrounding communities. Attorney Hayes’ primary focus is to help clients avoid probate, protect their assets, and provide for the security of their loved ones with a well-crafted estate plan. He believes in giving each client the time needed to explain his or her needs and wishes and then dedicates his efforts toward making the client’s desires clear in their final estate plan.

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