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McClellan Legal LLC Estate Planning & Tax Assessment Blog

Wednesday, June 18, 2014

Estate Planning for Second Marriages

Spouses in a first marriage generally have estate planning goals that are aligned because most of the time there are no children from prior relationships.  Typically, spouses in a first marriage own assets jointly and distribute assets upon death to the surviving spouse and then to the children equally.  This strategy does not provide a good result in second marriages where there are children from prior relationships because your surviving spouse can do whatever he or she wants after your death, including disinheriting your children. Do you want your children’s inheritance to be gambled on whether you will outlive your spouse?

A second marriage is very different because it may include your children, your spouse’s children, and sometimes joint children.  Obviously, each spouse wants to make sure that their children receive their inheritance.  Most of the time, estate planning strategies that you relied upon for your first marriage will not work in your second marriage.  For example, if you decide to add your spouse’s name on the title of your home with a right of survivorship, ownership of the property will immediately pass to your spouse when you pass away.  Your spouse will be able leave the property to anyone and completely disinherit your children.

Many spouses in second marriages believe that a promise made during the marriage will be honored, but promises can be broken after you are gone.  Unfortunately, relying upon promises generally does not end well.  With proper planning, you can be sure that your decisions will be honored. 

Here are a few estate planning strategies that can be used to ensure that your children will receive their inheritance when you are in a second marriage:

  • The most common estate planning solution is to put your spouse’s inheritance in a trust for their lifetime use, but then indicate that the remaining assets will pass to your children.
  • If your spouse is close in age to your children, then the above lifetime use option generally does not provide a great result because your children will have to wait a very long time to receive their inheritance.  In this case, you may want distribute some your assets to your children immediately upon your death. 
  • You also need to coordinate your beneficiary designations to make sure that your spouse does not receive outright control over the assets, which could potentially disinherit your children.
  • If you own life insurance or large retirement assets, you may want to consider leaving those assets to a trust in order to provide your wife only with lifetime income.  Otherwise, a spouse-beneficiary could redistribute those assets to anyone, which may not be your children.
  • If each spouse has their own substantial assets, then you may want to keep the estate plans entirely separate. 

When spouses in a second marriage have very different estate planning goals, it will create a conflict of interest.  In these situations, it may make sense for each spouse to receive estate planning advice from separate lawyers.  If you have any additional questions estate planning in a second marriage, please call our office to set up a meeting.




McClellan Legal LLC is located in Kennett Square and serves clients throughout the areas of Avondale, Chadds Ford, Coatesville, Downingtown, Landenberg, Oxford, Phoenixville, Pottstown, West Chester, & West Grove. We also serve the following towns in Lancaster County: Lancaster, Lititz, Strasburg,Millersville, Ephrata, Leola, Manheim, New Holland, Willow Street, Quarryville, Elizabethtown and Mountville.



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113 South Broad Street, Kennett Square, PA 19348
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