“How to plan for your estate when you're entering into a second marriage.”
Estate planning for spouses with children from a prior relationship can be difficult, as explained in an article from nj.com in the article “When you have kids, who should get inheritance from second marriage?” For example, if your new spouse leaves all of his assets to you outright, there’s no guarantee that his children will ever receive a dime. Even if you execute a will that gives his children an inheritance when you die, you could change the will at any time after your husband's death. The new will could cut his children out and leave everything to someone else, like your own kids. They could be children with the deceased spouse, or from a prior or later relationship, or a new spouse.
This can be a dilemma for the husband in this case. First, let’s look at whether he can unilaterally cut the new wife out of his will. As with most legal issues, the answer depends. However, New Jersey does have some laws to protect spouses from this situation.
In that state, the new wife may be able to claim an elective share. This entitles a surviving spouse to a third of the deceased spouse's estate—even if the deceased's will states that the survivor gets nothing. But this law is needs-based, so if she has her own property, either acquired independently or inherited from her spouse (including life insurance benefits) that’s more than the elective share amount, then she won’t be entitled to anything beyond what is provided under the will. That could be nothing.
New Jersey also has a law concerning an "omitted spouse." If your spouse executed a will before the marriage that leaves everything to his children but has no provisions for a future spouse, then the new wife would be entitled to a share of the deceased spouse's estate under the state’s intestacy laws. Those laws typically only apply, when someone dies without a will. However, they would also apply in this situation. In that case, the new wife would be entitled to more than 50% of the husband's estate and his children would inherit the rest.
The husband has several ways to address the situation. The simplest is to leave some of his estate to the new wife and a portion to his children. Another solution is for the husband to include a trust for the new wife’s benefit in his will. This spousal trust would provide her with all of the income from the trust, as well as principal distributions necessary for her health, education, maintenance, and support, known as the ascertainable standard. She’s entitled to principal distributions to keep her standard of living at the same level it was before the husband's death. Anything left in the trust when she passes away, would go to the step-children. This trust typically includes the couple's home, so that the surviving spouse can stay there so long as she lives. The home can also be addressed by granting the survivor spouse a life estate deed.
A prenuptial agreement is another way to provide for step-children, especially when one or both spouses is wealthy.
Consult with an estate planning attorney to discuss these options. It's wise to begin before you get married. You and your spouse should examine the situation from both sides, so that you fully understand the others' feelings and goals.
Reference: nj.com (September 6, 2018) “When you have kids, who should get inheritance from second marriage?”
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