Second Marriage and Your Estate Plan

Love may be lovelier, but it is a whole lot more complicated, the second (or third…) time around.

For one thing, we tend to be older.  This means we have fewer working years ahead, within which to recover from a financially devastating break-up.  I believe it is critically important for folks to have a PreNup, to ensure that each party maintains a baseline degree of financial security in the event of a split.

The biggest complicating factor, in my opinion, is adult children.  I have yet to see a second marriage without strain caused by the party’s respective children.  Without a good plan in place, we often see WW3 upon the death of the first spouse.  This usually involves ownership of the primary residence.  If I am the owner of the house, and my new younger husband moves in, he will likely ask to have his name put on the deed.  He will tell me that he will “of course take care to ensure that my children ultimately get the house”  Should I believe him?  No way!

To address the competing concerns of children who want the house upon death, and a spouse who wants the house at death, many people implement a solution that seems good, but isn’t.  The imperfect solution is for my estate planning documents to say:  “ I leave ‘Fabio’ a life estate in my home, and upon his death, it goes to my children”.  This sounds ok, BUT what happens if Fabio moves out?  Or he is in a Nursing Home?  Or he gets remarried and moves his new wife in?  In all of these scenarios, Fabio is still alive- so my children can’t even enter the property to pick up their baby pictures.

The better solution is for the estate planning documents to say: “Upon my death, provided no divorce proceedings had been commenced, Fabio has THE RIGHT TO OCCUPY the home until the earlier of his voluntary departure, remarriage, or permanent stay in a nursing facility.  These conditions can be customized, based on your individual concerns.

When it comes to estate planning and asset protection, one size does not fit all!

Ann-Margaret Carrozza is an Estate Planning and Elder Law Attorney, who previously served as a NYS Assemblywoman.  www.myelderlawattorney.com