Estate Planning – Considering a Second Marriage Late in Life

As the life expectancy of people in the United States increases, the reality of second and third marriages becomes more likely even for those who tend to marry for a long time if not until the death of their first spouse. Widows and widowers are increasingly likely to meet and decide that a second marriage is an excellent way to avoid spending their autumn years alone and that love is not the exclusive province of the young. It is often a surprise to adult children to meet the boyfriend/girlfriend or husband/wife of their elderly parents.

However, remarriage later in life creates a unique set of legal questions that those who are getting married don’t often think through. For example, many older clients take it for granted that their adult children will inherit from them when they pass away, because the majority of their property and life has been spent with their previous spouse who was often a co-parent to those children and the one who helped to build or sustain the family assets. But, a new marriage means that the marital property is governed by the laws of the new marriage. Absent any prenuptial agreement, the surviving spouse would, in most jurisdictions, receive at least half of the marital assets, which means that the adult children from the first marriage might be in for a big surprise if they think the family home that their family has owned for years will become theirs.

Another problem is that as people get older they often move to places where it is warmer. This means that they move to states where they have not traditionally lived before and these states not only have different (warmer) climates, but different laws as well. If they spend the colder months (or the entire year) in these states, it becomes increasingly likely that they will pass away in these states. But, are the laws of the state in which they pass away the ones that control the transfer of their assets or do the laws of where they have lived most of their lives control that transfer? If they have a will, then this question becomes even more complex. Often the real property (real estate) assets are governed by the laws of the state in which they sit, whereas the personal property (bonds, stocks, money, possessions) are controlled by the laws of the state that is their final residence.

The problems that are created by second marriages should not be taken lightly. It is important to talk these things through with your future spouse because, chances are, they want to make sure that their adult children get their assets upon their passing just as much as you do. If you don’t have a frank discussion with your would-be spouse, you may end up causing all those whom you love a great deal of heart ache and confusion as they struggle to figure out what would be best and what you would have wanted. This happens every day -- earnest people do their best to honor their deceased loved one, but honestly and simply disagree about what he/she would have wanted; a situation further complicated by those who just want to fight for any dollar they can get.

Consult with an attorney who can help you set up an agreement waiving certain marital rights that may be tailored toward married couples who start out together, rather than those who meet later in life’s journey. Be prepared to be honest and up front about what you want and ask your attorney what kinds of problems they commonly see with respect to estate planning and autumn romances and how they think such problems are best avoided. Your attorney will have plenty of good ideas that will ultimately help you safe-guard the important people in your life.