Jul
22
First Thoughts about Second Marriages
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I recently remarried. It is a second marriage for both of us and we each have adult children from our prior marriages. How can my husband and I provide for each other but protect our children's inheritance?
This is a common question faced by both second-time spouses and their children. The ultimate decision is a personal one dependent on the particular circumstances of your situation. Under New York law, you can disinherit your children but you cannot completely disinherit your spouse unless there is a waiver of the "Right of Election" included in a pre- or post-nuptial agreement or a separate writing. New York law provides a surviving spouse with a "Right of Election." The Right of Election is a right of the surviving spouse to receive one-third (1/3) of their spouse's assets. Even if you effectively "disinherit" your spouse by distributing probate and non-probate assets to your children during your lifetime, the surviving spouse can still elect to receive one-third of your "estate." For elective share purposes, the gross estate can include both probate and non-probate assets that pass outside of your will, such as joint accounts or in-trust for ("ITF") accounts. Although many second spouses during their lifetime claim to have no interest in the other spouse's assets or estate, if there is not a written waiver that meets the necessary requirements, the surviving spouse can always change his or her mind at the death of the first spouse and exercise his or her Right of Election. A pre-nuptial agreement waiving those rights, or a waiver of the Right of Election can solve this problem. In a waiver, each spouse mutually waives their right to take 1/3 of the first deceased spouse's estate, merely enforcing what you already agreed upon. Many children say they expect the surviving spouse of their natural parent to "do the right thing." This is not always possible and, even if the surviving spouse is willing to do so, there may be severe tax consequences. A surviving spouse might have to use up his or her lifetime gift exemption in order to "do the right thing" and transfer assets to the children of the decedent spouse. This might disproportionately impact their own children and create a disincentive for them to distribute such assets. Through the use of a trust, you can provide for the second spouse while ensuring the principal passes to your children and not through your spouse's estate to his or her children. To accomplish this, the first spouse to die transfers the property to a bypass or QTIP trust (Qualified Terminable Interest Property trust) created by way of the Last Will and Testament or during your lifetime. The QTIP Trust allows the surviving spouse to use and enjoy property during his or her lifetime, but ensures that the property will pass to your children (or whomever you designate) at the death of your surviving spouse. It is also crucial to check how your assets are titled. The surviving spouse may have a Right of Election against some but not all of your assets. The use of designated beneficiaries or joint property with rights of survivorship may allow for those assets to pass to your selected beneficiary but does not render them immune from challenge by the surviving spouse, who may exercise his or her "Right of Election" against those assets. You may be able to avoid the potential exercise of the Right of Election against certain assets by restructuring them. Life insurance, for example, is not subject to the elective share. Carefully review all of your assets and the designated beneficiary forms to ensure that they accord with your wishes. Finally, the best way to avoid a future dispute is to have a well thought-out estate plan that you have considered and agreed upon with your spouse, but that you have also discussed with all of your children so that they understand your wishes. This will help ensure that your assets pass to the people you intended them to pass to and will protect your spouse.

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