Joining two families together is a wonderful experience, however, there can be challenges when attempting to complete estate planning within second marriages. Spouses in second marriages may have different concerns and needs than they did during their first marriage, and these differences become clear when trying to complete an estate plan. If you would like to work with an estate planning attorney who understands your unique needs in a second or subsequent marriage, consider contacting The Law Office of Aubrey Carew Sizer PLLC at (571) 403-2619. Our team can help prepare a plan that addresses your specific needs and situation.
Why Estate Planning for Second Marriages Is More Complicated
There are many reasons why estate planning for second marriages can be more complicated than within first marriages. Some of the unique challenges in this situation might include:
- One or both spouses have children from a previous relationship
- One or both spouses have assets of significant value
- One or both spouses may have divorce decrees that affect the estate plan
- There may be a prenuptial or postnuptial agreement in place that affects the estate plan
- The spouses have competing interests of wanting to protect their spouse as well as their children or other relatives
- The blended family may be experiencing difficulty with the new family unit, and the estate plan may exacerbate the situation
- More sophisticated estate planning tools might need to be put in place to accomplish the objectives
Legal Effect of Divorce on an Estate Plan
Virginia has complicated rules when it comes to the legal effect of divorce on an estate plan. The effect depends on the type of estate planning document put in place:
- Wills – Code § 64.2-412(B) states that if a couple divorces, any provision in their existing will in favor of a former spouse is revoked, including any gifts left to them or beneficial interest (such as being named the executor) detailed in the will.
- Trusts – Code § 64.2-412(D) states that if a trust was revocable immediately before the divorce, any provision in the trust in favor of a former spouse, including any gifts left to them or beneficial interest detailed in the trust document is revoked unless the trust specifically states otherwise.
- Power of attorney – Code § 64.2-1608(B)(3)states that an agent's authority under a power of attorney terminates when a divorce case is filed.
- Advance medical directives – Code §§ 54.1-2983 does not state that there is an automatic revocation of an advance medical directive in case of divorce. Therefore, a former spouse may still be able to make medical decisions for their ex if the need arises.
- Designation of individual to make arrangements for disposition of remains – Divorce also does not affect the ability of an ex to arrange for their former spouse's funeral or the disposition of their remains, per Code § 54.1-2825.
Documents To Update Upon Remarriage
Even if some of your estate planning documents will automatically revoke provisions in favor of your former spouse, you may have unexpected and unanticipated gaps in your estate plan. Additionally, some provisions in favor of your new spouse will not be created automatically. Under Va. Code § 64.2-308.3, your new spouse is entitled to claim an elective share of 50 percent of the value of marital property if you do not have a will.
If you have recently remarried, you might consider updating the following estate planning documents:
- Last will and testament
- Living revocable trust
- Power of attorney
- Living will
- Advance medical directive
- Designation of individual to make arrangements for disposition of remains
- Beneficiary designations
Can I Leave Everything to My New Spouse and Have My Spouse Give My Children Their Inheritance?
Some spouses incorrectly believe that estate planning for second marriages will be just as easy as their first marriage. However, this is often not the case. Many first-time spouses may create so-called “sweetheart wills” in which they indicate that their spouse shall inherit all of their property if they predecease them. However, this technique might not be appropriate for second marriages because:
- If you name your new spouse as the sole beneficiary, there is no guarantee that your spouse will share the inheritance with your children.
- There is no legal obligation for your spouse to share their inheritance. Doing so could even create a condition in which your children might be subject to gift tax for the value of property they receive from your spouse.
- Circumstances may arise that prevent your spouse from leaving assets to your children, such as your spouse dying in the same accident as you or becoming incapacitated.
- Your spouse could remarry and have their priorities change once again.
Tools for Estate Planning for Second Marriages
There may be a variety of tools that the legal team at The Law Office of Aubrey Carew Sizer PLLC can help put in place to help you protect your new spouse as well as your children, such as:
If your first marriage ended in divorce and had a significant impact on your finances, you might be more willing to enter into a prenuptial agreement to clearly state how finances and other matters will be handled in case of death or divorce.
A qualified terminable interest property (QTIP) trust lets you name your spouse as the life beneficiary of a trust and then your children as the final beneficiaries. This arrangement helps you to provide for your surviving spouse, as well as your children.
You may have financial accounts or benefits that you want to pass onto your children to ensure they are provided for, such as life insurance proceeds or your retirement account. These assets pass outside the probate estate and can help balance your estate plan. However, you may need to have your spouse waive any right they may have to the proceeds.
Contact a Knowledgeable Estate Planning Lawyer for Help
If you are concerned about estate planning for second marriage, consider contacting The Law Office of Aubrey Carew Sizer PLLC at (571) 403-2619. Our team can create an estate plan based on your specific situation and needs. We can also help you update your estate periodically so that it evolves as your life evolves.