The elder population is experiencing more and more second and third marriages.
Second and third marriages almost mandate a revisit to an estate planning attorney or an elder law attorney for advice. Is a pre-nuptial or post-nuptial agreement needed? Almost certainly yes.
If the second or third marriage is late in life or if the potential spouses each have established families. Most state statutes provide married person with certain legal rights at the death of a spouse. But the scary part is that what congress thinks is fair or “right” may not be, at all, what you think is right.
A pre-nuptial or even a post-nuptial agreement can be tailored exactly for you and your mate so that a fair and reasonable division of assets will be made at the death of the first spouse. Some states have spousal rights laws, in Florida an “elective share” right available to a surviving spouse that can defeat your testamentary intent even if you have placed assets in a trust or even if you made a will naming children rather than a spouse as beneficiary or even if you placed a child’s name on an account or other asset as a joint owner and in some cases, can even pull back gifts made before death into the surviving spouses entitlement share.
Has your spouse obtained unintended rights in your residence? In Florida a spouse has a life estate ownership right in the home in which he or she lives even if his or her name is not on the deed. Is that what you intended? And what about your 401(K) or other deferred compensation retirement plan. Has your second or third spouse become the beneficiary of your 401(K) or other retirement plan without you knowing it and despite the fact that your children are named as beneficiaries? Maybe so. It is important to visit with an accomplished estate planning lawyer or elder law attorney before you enter into a second or third marriage.
category: Wills & Trusts