Second Marriage Typical Wills

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“What are the features of a second marriage typical wills? It appears too complex to balance their new spouse’s and children’s interests from their first marriage. And the interests of their new partner or marriage when they are married for the second time.”

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Second Marriage Typical Wills

Many people getting married put off the process of making Wills for the second time because of Will because it is too difficult. It is common for everyone to doubt providing for their second spouse comfortably during their lifetime. But ensuring that their children will inherit their assets upon their death.

Many testators would prefer to avoid leaving assets to their second spouse outright in such a situation. Even though many second spouses are sure to act responsibly, some may still need to. Today our topic is second marriage typical wills. Let’s learn about it!


Second Marriages and Wills

In California, around one in three marriages involve couples with previous marriages. And often, their children are also from earlier relationships. The estate of someone with a second marriage can suffer significantly if they die because a new union automatically cancels any existing Will unless specific provisions exist.

Suppose a new Will does not exist that ensures the deceased’s wishes remain considered. In that case, those who have been beneficiaries after the person passes away may only be eligible to receive something if steps need to take to do so. In this situation, children from a previous relationship may not receive anything from their parent’s estate.


Remarriage Wills or Second Marriages: How Do They Work?

Creating a trust involving your property guarantees your share for your chosen beneficiaries and ensures your claim is safe. Your partner may live in that property for life (or can move, and the same will apply to the new property) after you establish your Will, but your share will go to your children. Your beneficiaries receive their share of the property only upon its sale.

If your property belongs to both of you, your surviving partner will automatically inherit it if you do not do this.

For you to become tenants-in-common, a Severance of Joint Ownership would be necessary. If you are still alive, this does not affect property ownership. But only that each of you has a share of the property that can pass in your Will to whomever you choose.


Issues Related To Inheritance after a Second Marriage

As inheritance issues become more complex in second marriages, second and third unions have a high divorce rate. 50% of marriages end in divorce in the first year, 67% in the second year, and 73% in the third year.

There is a need for proper estate planning and inheritance consideration when considering that three out of four divorced people will remarry. Your spouse could remarry if you die before them, and everything would go to their children.

This would prevent your first-marriage children from receiving any inheritance. When planning inheritances, consider each factor individually.


Assets comingling

If you decide to keep separate assets from that of your first marriage, the new spouse has the right to have access to those assets. If you retain assets jointly, your new spouse can access those assets.

Property and income obtained during the marriage become community property. While property and income accumulated before the wedding remain yours.

A spouse inherits 100% of the assets you have compiled, including:

  • Your house,
  • Bank accounts,
  • Stock accounts, etc.

The second spouse usually changes everything and leaves everything to their children, not their spouse.


Aspects of long-term care

Many states require spouses to provide support for each other. In many states, if one spouse needs nursing home care, it is possible to use the other spouse’s assets to pay for the care. This could include personal income and retirement withdrawals. Other states do not affect the spouse’s income or retirement plan.

Before deciding to tie the knot, consult an attorney. Becoming partners may be more financially advantageous than getting married.


Beneficiaries update

Investment and life insurance beneficiary designations supersede any wills you make, so you must update them. A beneficiary designation will remain in effect if your ex-spouse remains on your life insurance policy and your new spouse appears on your Will.

Furthermore, if your second spouse is a beneficiary on all your life insurance and investments. They will receive everything, and your first children will receive nothing.


A 401(k) plan, an IRA, and financial investments

Your retirement savings, life insurance, brokerage accounts, and real estate are more likely to be brought to the marriage when you remarry as you get older.

If the current spouse agrees not to be designated as a beneficiary, they are a 401(k) plan beneficiary. You can specify who you want to inherit your other investments. This is an excellent way for you to ensure that your children receive a financial inheritance from you.

IRAs go to the person named as the beneficiary upon your death. Joint bank and brokerage accounts go to the child you held them with.


Heirlooms and Memorabilia of the Family

Specifying how you wish to distribute items in your Will or trust ensures their distribution according to your wishes. If you have personal heirlooms important to your children but not your current spouse, specify how to handle them in your Will or trust.


Premarital houses owned

When your spouse moves in after your second marriage, consider whether you want your children to inherit the home later. The title of your home supersedes anything you put in your Will if you include your spouse on the title. The house will pass to your spouse upon your death, and your children will receive nothing.

You can only keep the home in your name, but your spouse can live there until death. On their end, the house will pass to your children.


Authorization for medical treatment

If you were to lose your life, who would you like for your children or spouse to be able to make medical decisions on your behalf? Ensure that both your spouse and adult children know your wishes and that all the necessary documents have been ready.


Will Disputes Caused By Second Marriages

In recent years, there has been an increase in disagreements over second marriage typical wills due to second marriages and relationships between older couples. Losing a relative can lead to family members taking legal action due to conflicts resulting from relationships formed later in life.


Will Disputes Caused By Second Marriages


When a man marries again, his entire estate is often left to his second wife, while his first wife’s children end up petite or tiny. Many of these children are adults in their late thirties and forties who find it difficult to accept that their father has suddenly left the wealth he built up from a long marriage to their mother to a second wife he may have only known for a short time.

There is a highly complex issue here, exacerbated by the fact that the children of their father’s second wife may have had minimal contact with their father since their father died.


When a man’s Will does not adequately provide for a second wife

When a man’s Will does not sufficiently provide for a second wife, she may challenge it. The same problem also occurs when a man leaves most of his wealth to the children of his first marriage.

Additionally, a will may exclude someone like a son or daughter who should inherit without explaining why. People should be clear about their intentions when drafting their wills to avoid many of these problems.

If you want to exclude a person from inheriting, you should explain why you would like to do so. A statement of wishes will bind the courts and prevent any disputes in the future.


Legal battle

In the wake of grief, relatives are already under great stress. They do not need to engage in a legal battle. In some cases, a relative may feel that a person making the Will had an unfair influence by someone who wants to gain an unfair advantage.

An estate left to someone outside the family might be especially relevant if close relatives lose sight of it. For instance, a man may remarry in his sixties and draw up a new will that includes provisions for his new wife. Then changes it five or six years later and increases the amount he leaves her.

The second wife’s family may claim that he has exerted undue influence on his family if he updates his Will again a few years later and leaves even more to her. After probate passes, anyone wishing to contest the Will has six months.


In A Second Marriage, Writing A Will With Children Is Essential.

Second marriage typical wills or remarriage wills may be a better choice if you answer “yes” to any of the following questions:

  • What provisions would you like to make for your children from a previous relationship?
  • Is it necessary that the share of the property you own passes to the relatives you choose, whether they are your children or others?
  • Do you worry that your partner could alter their Will after your death so your children would be left out?
  • After your death, do you worry that your partner may remarry or start a new family, putting your children at risk?
  • Your property will automatically transfer to the surviving joint owner if it shares ownership. If your partner passes away, or even if they remarry, you will have no control over what happens to your property.
  • Do you have the option of protecting your children’s shares in the property now? The survivor’s position does not need to suffer in this case; for example, you can grant your partner the right to live there forever or until they remarry or cohabit with another partner or any other condition you wish.


Is There A Way To Protect My Assets In A Second Marriage?

A prenuptial agreement may be worth considering before marrying a second time. Although not legally binding in California, these agreements are generally followed during the divorce and financial settlement processes, making them valuable assets to protect.

The best way to protect assets in a second marriage is to make sure you make a new Will as soon as you are married that lays out what you want to do with your purchases and estate if you pass away before your spouse. When you do this, previous partners’ children become part of your estate to whatever degree you choose.


Is It Better For Us To Be Tenants In Common Or Joint Tenants?

Second marriage typical wills. The couple must own their house as tenants in common rather than as joint tenants if this arrangement is to work. Death of the first to die will automatically transfer the half share of the house to the survivor outright, bypassing the terms of the Will and negating the asset protection benefits it offers. When making your Will, you can terminate your joint tenancy if you are currently joint tenants.


Can We Use A Second Marriage Typical Wills To Plan Inheritance Tax?

Life interest trusts can effectively plan for inheritance taxes when there is a second marriage. Suppose the surviving spouse already has enough assets and does not need to benefit from all the assets belonging to the first to die. In that case, it can be a helpful way to obliterate assets free of inheritance tax from the joint estate.


Trustee roles

Trustee roles usually involve the surviving spouse and the children of the first to die, who are also the capital beneficiaries of the trust, which gives them a voice in its operation.


To allow assets to pass to the children.

To allow assets or capital to pass to the children, the trustees could agree to terminate the surviving spouse’s interest in the residue to some extent if they did not need the income from all of the assets. A surviving spouse does not have to pay inheritance tax when their assets enter the trust.’

A partially terminated life interest of a surviving spouse can be exempt from inheritance tax if the surviving spouse survives the termination by seven years which means the assets will pass entirely free of inheritance taxes to the children of the first to die. The device can be helpful for inheritance tax planning in larger estates.

A widow or both of you may be eligible for three or even four inheritance tax-free nil rate bands if you have been widowed and remarried. Because your predeceased spouse may have unused nil rate bands, you may each be eligible for a benefit.


Bottom Line

When you are considering or have already entered into a second or third marriage, Attorney Real Estate Group can assist you in updating your Will with specialist legal advice. Our advice must be tailored to your circumstances to reflect your wishes in your new Will.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  Bio...

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