For divorced people entering into second marriages, or considering marriage for a second or subsequent time, understanding how your new marriage will affect your estate plan is essential. Marriage alters many of your estate planning options, and subsequent marriages are no different. Learning how your new marriage will affect you and your family and updating your estate plan to reflect your new circumstances is important.
Second Marriages and Inheritance Rights
Spouses automatically have the right to inherit from one another upon the other’s death. This spousal inheritance right cannot unilaterally be disposed of, meaning you cannot disinherit your spouse. However, both of you can choose to surrender your inheritance rights by entering into a prenuptial or premarital agreement. With such an agreement, you can always choose to leave your spouse an inheritance, but you cannot be required to do so against your wishes.
A former spouse has no such inheritance rights. After a divorce or annulment, you and your former spouse lose the right to inherit from one another. To be on the safe side, you should have an effective inheritance plan that ensures your former spouse has no such inheritance rights.
If you created an estate plan prior to entering into your second marriage and have yet to update it, you’ll need to do so to reflect these spousal inheritance rights or the lack thereof if you have a valid prenuptial agreement.
Second Marriages and Children/Stepchildren
Similar to spouses, your biological or adopted children have the right to inherit from you. Unlike spouses, however, you can disinherit your children. When you create your estate plan you can choose to leave your children a small inheritance or none at all.
Unlike children, stepchildren do not have the right to inherit from their stepparents. If your second marriage is to a spouse with two children from a previous relationship, these stepchildren have no right to inherit from you. Similarly, your children have no right to inherit from your new spouse. While you can choose to leave your stepchildren an inheritance, you are not required to do so.
Second Marriages and Decision Making During Spousal Incapacitation
A key part of any estate plan is selecting the person to make decisions on your behalf should you become incapacitated. A good estate plan will protect you if you lose your ability to make choices.
But what happens if you are in a second marriage? Do you want your second wife or a child or children making these life and death decisions for you? If you don’t plan ahead, your spouse and not your children will likely be chosen to make decisions for you, unless a court is persuaded that someone else would be better suited for the task. If this isn’t what you want, you need to make your decision known.