Second Marriages and Estate Planning
Jan. 24, 2023
Weddings are always nice occasions to celebrate. There are a million things to take care of so everything can be perfect. Amid the hustle and bustle of wedding preparations, there is one thing that may not immediately come to mind: estate planning.
Creating an estate plan, or updating an existing one, is highly recommended for anyone entering a second marriage. Make sure you go into it fully informed so that all of your assets are covered. With the support of an estate planning attorney, you can understand your options and know what to consider as you go throughout the process. Reach out to our attorney, Bruce Peotter, at The Law Offices of Bruce Peotter today for guidance, and schedule a free consultation. We serve Englewood, Colorado (including communities around Denver) and Tustin, California (and throughout Orange County, including Irvine, Costa Mesa, and Santa Ana).
The Rights of a Surviving Spouse in Colorado and California
When most people think about a surviving spouse’s rights, they imagine the surviving spouse inherits everything automatically. While that is technically true, there are some key considerations to keep in mind.
Surviving spouses automatically inherit all joint property. This condition is crucial, as not all property may be jointly owned. This situation applies to community property acquired during the marriage.
Children from previous marriages also have a right to claim property. However, the surviving spouse is always first in line.
The law does not allow individuals to disinherit a spouse. Spouses have the right to a portion of the estate.
A will allows the distribution of property among designated heirs. Nevertheless, the surviving spouse may contest the will claiming greater rights over property than other beneficiaries.
Please remember that wills go through a court proceeding known as probate. In probate, the court approves the will. However, surviving spouses may contest the will. The court will hear the contest and determine if the contest stands. Ultimately, the court decides asset distribution as fairly as possible.
Elements to Consider When Creating an Estate Plan in a Second Marriage
Creating an estate plan in a second marriage requires careful thought and consideration. Here are the key elements to consider when creating an estate plan in a second marriage:
A prenuptial agreement. A prenup is a common document used to protect assets. A prenup is a good alternative to protect property owned before the marriage. Specific conditions may be included in a prenup. Nevertheless, the surviving spouse still gets a portion of the estate. A prenup may stipulate specific financial payouts or properties the surviving spouse may inherit.
Children’s inheritance. Children play a key role in creating an estate plan. Specifically, an estate plan must consider what property children will inherit. Children from previous marriages may complicate asset distribution as the surviving spouse may disagree with children’s inheritance.
Using trusts to protect assets. Trusts do not require probate. Once property is placed in a trust, it no longer legally belongs to an individual. Additionally, surviving spouses cannot contest a trust. Individuals who want to ensure a surviving spouse does not have rights over certain property may consider using trusts instead of a will.
Beneficiaries. Another key factor is deciding who the beneficiaries will be. Technically, anyone can be a beneficiary. However, a surviving spouse can always claim precedence over other beneficiaries.
Long-term care costs. A good rule of thumb is to allocate a portion of the estate to healthcare and long-term costs.
Consulting with a professional estate planning attorney allows folks to determine their options. Doing so helps an estate plan to protect loved ones.
Common Mistakes to Avoid in an Estate Plan in a Second Marriage
Here are common mistakes to avoid when creating an estate plan in a second marriage:
Not consulting with a professional estate planning attorney. It is always worth the cost to seek professional estate planning advice.
Not having an estate plan at all or updating an existing one before the marriage.
Failing to discuss estate planning with a spouse. Spouses must be aware of estate planning to ensure clear communication.
Assuming surviving spouses will not contest a will.
The biggest mistake folks make is putting off estate planning. Reaching out to a trusted and experienced estate planning attorney is the first step to protecting loved ones.
Getting Professional Estate Planning Advice
The best day to plan your estate is today. At the Law Office of Bruce Peotter, we work tirelessly to help our clients protect their assets and loved ones. Call today to speak with a professional estate planning attorney who can guide you in planning your estate.