Second Marriage & Estate Planning
Sept. 14, 2022
According to the Washington State Department of Health, 38.7 percent of the state’s population is married, while 12.1 percent is divorced. The U.S. Census Bureau also ranks Washington among the Top 10 States for divorce, with a rate of 9.8 percent during the 10-year study period from 2008 to 2018.
People who divorce don’t always stay single but often remarry. While this may provide some much-needed companionship and comfort to their lives, it can also pose challenges when it comes to estate planning, especially if there are children from the previous marriage.
Probably the worst mistake of all is not updating any will or trust you have in place when you remarry, or even worse, not changing the beneficiaries named on your 401(k), investment accounts, and life insurance policies.
While the previous spouse will have obtained half of all marital assets during divorce because of Washington’s community property laws, a beneficiary designation to your ex-spouse is still valid. A will that cedes anything to your EX, however, by law will not be honored unless you include language in the document making the designation permanent.
If you’re planning to remarry in Richland, Pasco, Kennewick, Walla Walla, or anywhere in the surrounding tri-state area of southeast Washington, or if you have already remarried and need to start or update your estate planning, contact the Northwest Elder Law Center.
Our estate planning attorney has more than three decades of experience helping individuals and couples create estate plans that provide peace of mind and security for all involved. We also proudly serve clients in Portland, Oregon.
Estate Planning Considerations in a Second Marriage
Each marriage, whether first, second, or third, presents its own unique circumstances and challenges. Let’s assume that the second marriage involves two people who both have children from previous marriages and plan to have children during their current marriage. When it comes to estate planning under these circumstances, never has the phrase “plan ahead” carried more weight.
The children from the previous marriage, especially if they are grown or not living in the new household, may view their new siblings as competition, especially when it comes to matters of inheritance. At the same time, both spouses are going to want to take care of the children from their previous marriage, but doing so could result in shortchanging everyone, including the current children.
This clearly can morph into a dilemma of choices and one that both spouses must discuss and resolve preferably before marriage, and if not, at least before having another set of offspring. A will may suffice to take care of everyone, but more likely, a set of trusts may need to be established, perhaps a joint trust with the new spouse and separate trusts to take care of the children from both marriages.
You really need the experience and knowledge of an established estate planning attorney to sort through the options and help you come up with an equitable solution. Of course, other scenarios – including no children from a previous marriage or no children planned for this marriage – can require different approaches, but either way, professional guidance is essential.
What About a Pre-Nuptial Agreement?
Another way to provide for children from a previous marriage is through the creation of a prenuptial agreement, which sets aside from the marriage a set of assets that belong only to you. In this way, you can use these assets to care for your children from your previous marriage or even other beneficiaries you choose to designate. Of course, your spouse-to-be is going to have to sign off on this to make it valid, so it cannot be used as a subterfuge tactic.
If these assets of yours are already considered separate property under Washington’s community property standards, then they would not be subject to division should you get divorced again. Check with an estate planning attorney on how best to protect your separate property for estate planning purposes.
Common Mistakes to Avoid
The biggest mistake is rushing headlong into a second marriage without considering all the ramifications. You and your spouse-to-be should conduct an inventory of all assets and debts and have an “adult” discussion about your relationship going forward, including finances, asset sharing, and the desire of both of you to provide for your loved ones from your previous marriage.
Another common mistake, as mentioned earlier, is not updating the beneficiaries named on your retirement, investment, and life insurance policies and accounts.
Though, once your divorce from your previous marriage is final, any will you have that names your ex-spouse as beneficiary will be considered invalid, and assets that transfer outside of the jurisdiction of probate court proceedings, such as 401(k)s and other accounts, will still recognize the named beneficiary.
Rely on Sound Legal Advice
A second marriage can present all kinds of challenges when it comes to estate planning, so it is best to consider all the options and potential obstacles before you take your vows or as soon as possible. To help provide clarity and guidance, you should rely on the knowledge and experience of a seasoned estate planning attorney.
If you’re anywhere in Southeast Washington or nearby Portland, Oregon, contact the Northwest Elder Law Center to start your estate planning or review and update whatever legal documents you already have in place. Reach out today for a one-on-one consultation.