Getting Remarried: Avoiding Estate Planning Mistakes

Large Family Group Sitting On Sofa Indoors

After Lori’s first marriage ended in divorce, she told her three adult children that she would never remarry. That was until she met Chris. After dating him for five years, and realizing that they were meant to be, Chris proposed to Lori and she said “yes.” Not only will this hopefully mean a happily ever after for Lori and Chris. It also means a big, blended family for her three children and his two.

Second chances can bring a lot of joy, especially in the context of getting remarried. In fact, blended families now outnumber traditional families, according to the U.S. Census Bureau. This is not just because of rising divorce rates – our longer life spans mean that many more people are outliving their spouses and remarrying. However, second marriages bring with them unique challenges. Now, not only do you have to take into consideration the needs of your new spouse, you also have to consider the needs of your children from your previous marriage and possibly the needs of children from your second marriage.

Estate Planning for Blended Families: Avoiding Mistakes

When it comes to blended families, mistakes made by not planning properly often have immeasurable costs. Below are a few common mistakes to avoid:

Mistake #1: Not updating your documents

Far too many people complete their estate planning documents and then never think about them again. This is not a good idea for anyone, as Estate Planning documents should be updated at least every 5 years, but for those who remarry and have children and stepchildren, the results of ignoring your estate planning documents can be disastrous. Significant events in your life, such as remarriage, could alter the way that you originally meant to apportion assets in your estate planning documents. The only way to ensure that your estate plan truly reflects who you are, what you care about, and what you have today is to have your documents reviewed and updated frequently. Click here to learn about other instances where you should update your estate plan to avoid unintended consequences.

Mistake #2: Not considering the feelings of everyone in your family.

Many of us don’t realize just how sensitive family members can be until it comes to estate planning issues – especially when it involves children and stepchildren in blended families. Even if family relations are good now, that quickly and dramatically changes when a biological parent dies and leaves all of his or her assets to a stepparent — which happens all too frequently. This can happen through poor planning and often through lack of planning, such as owing everything as joint owners with right of survivorship.  This is why you must plan these sensitive matters carefully. The first step is to have an honest conversation with your new spouse about your existing finances, goals for the future, and how you expect your assets to be distributed — if you die before your spouse and if you die after your spouse. These conversations can be difficult and emotionally-charged, but they will reap innumerable rewards in the long run. Since your children are adults, you may also want to include them in these discussions so that everyone knows what to expect. It is prudent to meet with an experienced estate planning attorney, such as myself, prior to remarriage to assess your options. Read more about estate planning for a second (or higher number) marriage here.

Mistake #3: Choosing the wrong person as a trustee.

The selection of the trustee is one of the most important aspects of properly planning an estate of a remarried spouse.

The surviving spouse of a second marriage should rarely be the sole trustee. Even if the spouse is well intended, he or she will invariably lack the necessary neutrality.

The decedent’s children should rarely be the sole trustees of the spousal trust. Again the possibility for partiality exists and suspicions will ride too high for effective trust administration.

A trusted family friend may be a good choice, but unfortunately, the trustee will be faced with difficult choices and extreme pressure by the beneficiaries, so even a good friend may refuse to continue to serve as trustee under such pressure. Often the best bet, especially if the estate is sizeable, is a professional trust company.

The Farr Law Firm’s estate administration division also handles all aspects of estate administration, employing a team of professionals with wide-ranging expertise.

The Importance of a Prenuptial Agreement

Anytime people are entering into a second (or subsequent) marriage, I strongly recommend a prenup. Although not always as strong as using trusts, prenups can pave the way for good estate planning.

Many people think of a premarital agreement as only dealing with what happens in the event of a divorce. However, the most important reason for a premarital agreement is to determine how your estate will be distributed if one of you dies during the marriage, especially if your marriage becomes a long-term marriage (which, of course, is the intended goal of all marriages).

Even if you have already completed an estate plan of your own, a new marriage typically calls for significant changes to your plan.

Although both parties to a new marriage have the right to hire separate attorneys in connection with creation of a premarital agreement, many couples prefer to go through this process together, via mediation, in order to minimize the expense and avoid the adversarial nature of being represented by two separate attorneys. The advantages of having two separate attorneys is that both parties both receive completely independent, private, and confidential advice. By going through mediation in an effort to develop a written agreement and estate plan, you will be giving up these advantages. If you choose mediation, the purpose of the mediation will be to attempt to arrive, in a cooperative and informal manner, at a mutually acceptable agreement that resolves all financial and legal issues that may arise in connection with your upcoming marriage, your existing marriage, or your co-ownership of property.

I am a trained mediator and am available to mediate premarital contracts with couples planning to enter into a second or subsequent marriage, with a goal of preparing the agreement and then doing the subsequent estate planning for the couple. Learn more here.

Estate Planning is Important for ALL Families

We here at The Farr Law Firm have strategies in place to help all types of families plan for themselves and their loved ones. With advance planning, each person, regardless of their family situation, can retain the income and assets it has taken a lifetime to accumulate and the peace of mind that the needs of their child(ren) and the needs of their spouse will be adequately and properly addressed. If you or members of you family have not done Incapacity Planning or Estate Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for an initial consultation:

Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301-519-8041
DC Estate Planning: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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