Second Marriages & Estate Planning
Dec. 28, 2022
Establishing a well-detailed estate plan is crucial to prepare for life's uncertainties and leave specific instructions about how your estate should be settled when you're gone. For individuals in a second marriage, it is important that you consider the inheritance of your children and make suitable provisions for your new spouse in your estate plan.
At Davidson Estate Law, we give our clients detailed legal counsel and reliable advocacy in their complex estate planning matters involving second marriages. Our practiced attorneys have the tools to inform you about your possible legal options and outline a strategic plan to create or update your estate plan in your second marriage. We proudly serve clients across Oakland, Alameda, Berkeley, Walnut Creek, El Cerrito, San Francisco, and throughout the Bay Area of California.
Rights of a Surviving Spouse
California is a community property state. According to the system, in the event that there is no prenuptial agreement, will, or any other written agreement, the decedent's surviving spouse will automatically be entitled to half of their marital property – assets and income accumulated by the spouses during their marriage.
In addition, when a spouse dies, their surviving partner will receive one-half of the decedent's community property. However, if the deceased person isn't survived by any children, siblings, or parents, their surviving spouse will be entitled to all of the separate and community property.
Considerations When Drafting an Estate Plan in a Second Marriage
When creating an estate plan in your second or subsequent marriage, there are some important things that you need to keep in mind. Be sure to take the necessary steps to protect yourself, your assets, and your children.
Establish a Prenuptial Agreement
When going into a second marriage with substantial assets and properties, it is advisable that you establish a premarital agreement. With a prenup, you can protect your assets and finances, make suitable provisions for children from your previous relationships, and define expectations. Moreover, this will offer you an opportunity to have an open and honest conversation with your new partner.
Establish a Trust to Protect Your Assets
Another way to protect your assets before entering a second marriage is by establishing a living trust. With a trust, you can store away assets for your children or beneficiaries until a future date. In addition, the trust assets will bypass the costly and time-consuming court-supervised probate proceedings. You can learn more about the benefits of creating a revocable living trust here.
Consider the Inheritance of Your Children
What's more, when you remarry in California, the new marriage laws will address your marital property. Under state laws, the surviving spouse is entitled to receive one-half of the marital estate. This might make your adult children from your previous marriage relinquish the majority of their potential inheritance to your new spouse. Hence, consider the inheritance of all of your children when creating your estate plan and make adequate provisions for them.
In addition, you should consider updating the beneficiaries on your annuity, retirement plan, and life insurance coverage. Everything has to be consistent with your present wishes. In some situations, you may need to purchase additional life insurance policies or retirement plans to add your new spouse.
Consider the Cost of Long-Term Care
Finally, you should take the cost of long-term care or nursing home of your partner into consideration. Even when a prenuptial agreement exists, you will still be the one to cover the cost should the need arise. Hence, make suitable provisions for the cost of long-term care of you and your spouse in your estate plan.
Common Mistakes to Avoid
When drawing up an estate plan in a second marriage, you should avoid any of these mistakes:
Not changing or updating your wills or beneficiary designations.
Not removing your estranged partner from your estate plan.
Avoiding estate planning-related discussions with your loved ones.
Failure to update or adjust your financial documents.
Failure to add your new spouse to your estate plan.
Delaying giving money, gifts, or inheritances to your children.
Failure to discuss your finances with your current spouse.
Treating all beneficiaries and heirs equally.
Not working with a trusted estate planning attorney.
A slight mistake can make your estate plan invalid or cause disputes among surviving loved ones and beneficiaries when you're gone. Therefore, working with an experienced estate planning attorney is imperative for proper guidance and to help you make intelligent decisions.
Rely On Davidson Estate Law for Trusted Advocacy
After remarrying, it is important to update your estate plan and make sure it is consistent with your present wishes. However, second marriages and estate planning often involve several complicated procedures. At Davidson Estate Law, we have the diligence and expertise to advise and guide clients in their second marriage through the legal processes involved in drafting or updating their estate plans.
As your attorney, we can evaluate your specific situation, identify the assets to leave for your children, and determine whether to create a new joint trust. In addition, we can help update your vital estate planning documents and beneficiaries and form a plan together to manage your assets and finances. Above all, we will ensure that your estate plan is as clear as possible and covers all essential provisions for your family members.
Contact us at Davidson Estate Law today to arrange a simple consultation with a strategic estate planning attorney. Our dedicated legal team can guide you through the process of drafting or updating your estate plan in your second marriage and help you make informed decisions. We're proud to serve clients across Oakland, Alameda, Berkeley, Walnut Creek, El Cerrito, San Francisco, and throughout the Bay Area of California.