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Second Marriages & Estate Planning

Law Offices of David W. Wilcox May 17, 2022

Preparing for your second marriage after a divorce or the death of your first spouse may feel like you are getting a fresh start. However, there are specific estate planning considerations to make if you are getting married for a second time.

When creating or updating your estate plan before or after getting married for the second time, you may encounter a number of issues, especially if you and or your new spouse are bringing children into the marriage.

With an attorney, you can make informed decisions and achieve your goals when preparing an estate plan. The experienced estate planning attorney at the Law Offices of David W. Wilcox provides highly customized estate plans tailored to each client’s specific needs and goals. With an office in Bradenton, Florida, Attorney Wilcox serves people throughout Matinee and Sarasota Counties.

Rights of a Surviving Spouse

When developing an estate plan, it is essential to understand the rights of a surviving spouse in your state, whether you are already married or are planning for your first, second, or subsequent marriage. The rights of a surviving spouse in Florida can be broken down into three categories:

  • Homestead. As a general rule, the homestead (the family’s primary residence) will pass to the decedent’s surviving spouse and minor children. Florida law prohibits residents from devising their homestead through a last will and testament or a trust if they have a surviving spouse and or minor children.

  • Intestate share. If you die without a will – known as dying intestate in legal terms – your surviving spouse will be entitled to the entire estate as long as you die without any other descendants or all of your descendants are also the descendants of your spouse.

  • Elective share. In Florida, surviving spouses are entitled to an elective share, which provides them with a safety net if they have been disinherited or their deceased spouse left them a very small portion of the estate. The elective share is equal to 30% of the elective estate.

Things to Consider When Creating
an Estate Plan in a Second Marriage

There are many challenges you may face when planning a second marriage or if you are already remarried. That is why people have to make a number of estate planning considerations when entering a second marriage, especially if they have children and inheritance from their previous marriage.

Things to consider when creating an estate plan in a second marriage include:

  1. Children. If you and or your new spouse bring children into the marriage, you will need to decide what assets or how much money to give to the kids. When too many children are involved, deciding on what would be an appropriate distribution could be tricky.

  2. Assets. In most second marriages, at least one of the spouses is likely to bring assets from previous marriages. Such assets may include real estate, life insurance, bank accounts, retirement accounts, personal belongings, and many more. You will have to decide whether or not you want to leave anything to your ex-spouse.

  3. Pre or post-nuptial agreement. Many people who go through a divorce make a promise to themselves that they will create a pre-or post-nuptial agreement when getting married again in the future. A well-crafted prenup or postnup can protect any assets you acquired and money you have earned prior to the marriage.

  4. Naming and updating beneficiaries. People often name their spouse as the primary beneficiary on their individual retirement account (IRA), life insurance policy, and other accounts. However, they may forget to update their beneficiary designations when they get divorced and enter a new marriage.

  5. Long-term care. While no one likes to think about the possibility of dying or becoming disabled, long-term care planning is an essential part of your estate plan. The need for long-term care planning increases as we get older and get remarried later in life.

There are many other issues that you may need to consider when developing an estate plan ahead of your second marriage. Work with a knowledgeable attorney to analyze your specific situation and guide you through the estate planning process based on your goals, needs, and wishes.

Estate Planning Documents
for a Second Marriage

If you are planning for a second marriage, you may want to include the following documents in your estate plan:

  • Last will and testament. If you do not write a will before your death, your assets will be distributed among your heirs according to Florida’s laws of intestate succession. With a will, you can make arrangements for the distribution of your property, name guardians for your minor children, and select a person to serve as the executor of the estate.

  • Financial power of attorney. Not everyone who has an estate plan creates a power of attorney. Many people do not realize why they need a POA as part of their estate plan. However, having financial power allows you to appoint a person who will manage your finances and property for you when you cannot do it yourself.

  • Medical power of attorney and living will. If you have spouses and children from previous marriages, there may be disputes regarding the type of medical care that you should receive when you are unable to make decisions on your own. That is why it is critical to create a medical power of attorney and prepare a living will to specify your medical treatment and care instructions and name a person who would make healthcare decisions on your behalf.

Preparing or changing estate planning documents can be a daunting task. That is why you may want to have an experienced estate planning attorney help you prepare the documents and address your specific concerns related to your second marriage.

Get the Skilled Legal Representation You Need

Estate planning can become more complicated when a second marriage involves children and inheritance from previous marriages. If you are planning a second marriage, you must get legal guidance from a skilled attorney to help you prepare the necessary estate planning documents. At the Law Offices of David W. Wilcox, Attorney Wilcox provides a personalized approach to estate planning and helps residents of Bradenton, Florida, and surrounding areas with all aspects of estate planning. Reach out today to schedule your case evaluation.