By Lane V. Erickson, Idaho Estate Planning Attorney
While there are many things that can affect your estate planning, few things have as big an impact as a second marriage. Being married a second time means that your first marriage ended for some reason. This could be because your first spouse passed away. Or, alternatively, it could mean that your first marriage ended in a divorce. Regardless of how your first marriage ended, it’s likely that your current estate plan was created during your first marriage and at least some of the people your plan involved are no longer a part of your life.
A written estate plan, and more particularly your written last will and testament, is not concrete until you die. In other words, you have the ability to change or alter any portion of your written estate plan so that it meets your current needs. It’s for this reason that we always talk with our clients about reviewing their documents often especially if they have gone through any type of a major life change. These types of changes include the birth of a loved one, the death of a loved one, a divorce, a marriage, someone moving away, or just the passage of a long amount of time. Any of these things could have an impact on your life, which may require you to update your estate planning.
Obviously, the death of a loved one, or a divorce, could lead to a second marriage. Because of this, a second marriage is a prime reason for reviewing all estate planning documents and updating them to make sure they accomplish what you intend.
At the Racine law office our team of Idaho estate planning attorneys work to help each individual client with their specific needs. We’ve been helping our clients for more than 70 years in making sure that their specific wishes and intentions are carried out not only while they’re alive but also after they have passed away. This is especially true when it comes to your plan and a second marriage. Our team of Idaho estate planning attorneys consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys are experienced and have earned the highest rankings possible on Martindale-Hubbell, Justia, and AVVO, which are all legal reporting services that provide details on the skills and abilities of attorneys.
Communication Is the KeyWhen it comes to a second marriage communication is the key. Before you are married you and your prospective spouse should sit down and talk through everything associated with your property and their property, your family and their family, and the intentions you both have.
By communicating, you will both have a clear understanding of what both you and your prospective spouse are thinking about when it comes to estate planning. The reason for this is that usually each person in a second marriage has accumulated their own property and assets. Additionally, in a second marriage, usually both spouses already have an established family with their own children, and maybe grandchildren too.
What Happens When You Do No PlanningWhen there is no communication then there is no planning. When there is no planning then unforeseen things can happen that can often cause family fights and other problems. For example, suppose that you have a life insurance policy that named a former spouse as a beneficiary. Now suppose you divorced this former spouse. Also suppose you have now remarried but you never went back to your life insurance policy and changed the name of the beneficiary that was listed. If you were to die, your former spouse would be entitled to the life insurance proceeds because she is still named as your chosen beneficiary on your life insurance contract.
As another example, suppose that you are in a second marriage and that you have no written estate planning documents including a last will and testament. When you have no written will, the laws of intestacy control who receives your money and property after you pass away. In this instance, you may have intended for a certain items of property, such as the family home or a certain bank account, to go to your children. However, with no written will, your new spouse will likely receive most of your assets and property which could leave your children with nothing.
Prenuptial AgreementOften, when a person is about to enter into a second marriage a prenuptial agreement is used. This type of agreement is used by persons who are about to be married as a way of separating out property that they each will continue to own separately during the marriage and which the spouse agrees they have no claim or interest in even if the other spouse passes away. This leaves the spouse who owns that property free to list in their written will the person(s) that will receive this property when they die.
In this way, an individual can use their written will to leave certain property to their children or two other individuals. By doing this, the surviving spouse has no right to claim any type of ownership interest in this property or to claim that they should have received it through their spouse’s written will.
Postnuptial AgreementA postnuptial agreement is similar. This type of agreement is entered into after the marriage has occurred. In Idaho, this is commonly called a marriage property separation agreement. The format and much of the language that you would find in a prenuptial agreement is used in this type of an agreement as well. The difference is that it happens after a person is married rather than before.
To make this type of agreement binding, Idaho law specifically requires that each spouse have an opportunity to review the agreement with an attorney of their choice. Additionally, the specific property that is going to be separately owned by one of the spouses has to be itemized and listed specifically enough so that the other spouse understands what it is. Finally, very specific language in this type of agreement is used so that the spouse acknowledges that they are giving up any right or interest that they could or may have had in the property because they are married. In other words, there has to be clear intent to give up any right or interest in this property and to allow the other spouse to own it as their separate property during the marriage.
This article provides just some simple ideas of things that you should think about as part of your estate planning if you are in a second marriage or are about to be in one. If this is your situation, we strongly encourage you to meet with us for a free 30-minute consultation where we can answer your questions and help you come up with an estate plan that will work for you and your family. We have helped numerous clients through this situation and we are confident that we can help you too!
Enlist an Idaho Estate Planning Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.