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Planning Your Estate after a Second Marriage


Writing a will with your spouse often involves balancing competing interests on where your assets should go—whether it’s a donation to a nonprofit organization you support but your spouse doesn’t, or a gift to a relative with a checkered history. These decisions become even more complex when planning your estate with your second spouse as a parent with a blended family. If you’re facing complicated questions about how to draft your will with your second spouse, you’re not alone; one survey showed that 40% of all marriages involved at least one spouse who had been married before, and in 20% of marriages, both spouses were wedding for the second time.

Estate planning in a second marriage may place spouses in the uncomfortable position of deciding between their partner and their children. While it may be important to you that your spouse is financially comfortable after you pass, it is also important that your children benefit from your lifetime of hard work. Some spouses choose to keep their assets entirely separate during their marriage, leaving behind the entirety of their estate to their children. This approach would require you and your spouse to be very careful not to purchase large assets jointly or mingle assets during the marriage, which can be challenging to accomplish. Another possible solution is to create a trust that will pay an income to your spouse when you pass, with the principal balance to go to your children upon your spouse’s passing.

If you’re confident that your spouse has independent means of remaining cared for should you be the first spouse to pass on, you might consider disinheriting your spouse entirely and leaving your estate to your children directly, rather than leaving your estate to your surviving spouse to distribute to your kids when they pass. That said, disinheriting a spouse can be tricky. A law in New York known as the spousal right of election says that a spouse can choose to either take the share of their spouse’s estate as left to them in the deceased person’s will, or the spouse may choose to take a certain portion of the estate and the deceased person’s assets. The spousal right of election must be explicitly waived, which is most often accomplished through a prenuptial or postnuptial agreement. Estate planning in a second marriage is inevitably complex and requires the assistance of a skilled New York estate planning attorney to ensure that your wishes and those of your spouse are fulfilled.

For assistance in planning your estate in New York, contact the detail-oriented and experienced Poughkeepsie wills & trusts lawyers at Van DeWater & Van DeWater for a consultation, at 845-452-5900.

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