Part I: Estate planning issues surrounding remarriage
By Ann E. Salek, Attorney at Law, Critchfield, Critchfield & Johnston, Ltd.
As people live longer, remarriage becomes more and more common. People may lose their spouse or divorce while still contemplating a long life ahead for themselves. Statistics show that the largest population of people getting remarried are in the age group over 55.
Remarriage can generate some unique issues from an estate-planning perspective. I often have clients who are in a second marriage that have children from a first marriage. This client really needs to think through who should receive their assets upon death.
In Ohio, even if a decedent leaves a properly executed will directing assets to children, a surviving spouse may “elect to take against that will” and receive a significant portion of the decedent’s estate. Furthermore, even if the will directs assets to children, if the assets are non-probate assets, there is usually a beneficiary designation that controls who receives the asset upon death. Therefore, the will is irrelevant for directing non-probate assets.
I often have remarried clients who want to provide for their surviving spouse, but when that surviving spouse dies, they want any remaining assets directed to their children from a prior marriage. The couples often agree to this plan while both are living. However, the survivor’s thinking may shift a couple years after their spouse’s death. The survivor may decide their own children should receive all the assets or the survivor may even get remarried again. Even if the survivor still intends to honor the original plan, the survivor may inadvertently co-mingle the decedent spouse’s funds with their own funds so that everything ends up being distributed to their children.
In order to accomplish estate planning goals when couples are in a second marriage, trust planning is often required. In addition, it is best to enter a remarriage with a prenuptial agreement that addresses some of these issues prior to marriage. The prenuptial agreement can establish the parameters regarding any subsequent divorce but also the parameters of what happens to assets upon death. The trust planning will then ensure the agreement is implemented.
When clients ask me, “Should I get remarried?” I tell them there are legal benefits to being married and legal benefits to not being married. You just need to know the repercussions for both circumstances and plan accordingly.
There are also many “elder law” issues surrounding remarriage. Such issues warrant a separate article. Look for part two of “Should I get remarried?” in the next issue.
Opinions and claims expressed above are those of the author and do not necessarily reflect those of ScripType Publishing.