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Second Marriage and Estate Planning

The Law Offices of Kenneth W. Drake, Inc. April 10, 2023

Estate Planning text written on wooden blocksNo matter how complicated your life is, it’s important to have an estate plan in place that lays out your wishes for where and to whom your assets should go. However, writing an estate plan in a second marriage brings with it a different set of concerns that you may not have fully considered yet. Specifically, you’ll need to address the inheritance of the children (both natural and step), the rights of a surviving spouse, and the benefit of using trusts to protect assets.  

All of this is best done with the assistance of an experienced estate planning attorney. At The Law Offices of Kenneth W. Drake, Inc., I offer you professional yet personable service for all your needs. Call today for help in Woodland Hills, California, or the San Fernando Valley, including Los Angeles County, Ventura County, and Santa Barbara County. Reach out today for guidance. 

Rights of a Surviving Spouse

One major issue that anyone entering a second marriage needs to address includes the laws surrounding the inheritance rights of the surviving spouse. California is a community property state which means that in the eyes of the law, any marital assets are considered jointly owned and should be split 50/50 between each spouse. This means that when one spouse passes away, the surviving spouse will automatically inherit half of all assets, and if there is no will in place, they may receive all of them.  

This can affect you in several ways: 

  • If you’re still married to your first spouse and are already in a committed relationship with someone new, and you pass away before altering your will, your first spouse will be in line for your inheritance.  

  • If you’ve already remarried and pass away, the surviving spouse inheritance rules may mean that your children from your first marriage are left with nothing.  

What to Consider When Creating an Estate Plan in a Second Marriage

Many people entering into a second marriage should consider writing a prenuptial agreement, which can address the potential conflicts that the new marriage brings. This could include provisions that do the following: 

  • Protect assets you acquired before the marriage; 

  • Include specific language that ensures the children from your first marriage are provided for should you die before your spouse; and 

  • Look at the beneficiaries in a second marriage to ensure everyone is accounted for, most notably children.  

One common way people ensure the inheritance of their children from a previous relationship is by using trusts to protect assets. By using a trust, you can place assets in the care of a trustee and this person will then be responsible for making sure your child’s inheritance is secured and won’t be affected by surviving spouse inheritance laws.  

Also, many people who enter into second and third marriages are older. Because of this, make sure to consider their health needs and the costs associated with medical care. By purchasing long-term care insurance, you can help protect your heirs from high long-term care costs. 

Common Mistakes to Avoid

Your attorney will perform a thorough evaluation of your estate, but there are some common mistakes you can look out for now to protect your interests: 

  • Make sure you change the beneficiary listing on investments, retirement funds, or pensions. Many people assume that just because they’ve named an heir in a will that this will cover all aspects of their estate. But, this is often not the case.  

  • Another mistake to avoid is thinking you need to treat all heirs equally, especially children. It’s possible that your stepchildren will be provided for by their other parent. Your wishes surrounding your assets are most important, so make sure you stick with what you really want.  

Don’t Risk Your Future. Call Now. 

If you’re in the Woodland Hills, California, area and would like to speak with an estate planning lawyer about your upcoming or recent second marriage, call me at The Law Offices of Kenneth W. Drake, Inc. to schedule an appointment.