Helen Morris at the Times Colonist had an interesting article this morning about the potential dangers of new marriages causing disinheritance of children. As she does a nice job discussing, new marriages can have a significant effect on how money and other assets are passed when a person dies. Often, people who fail to conduct proper estate planning can be surprised on what will happen to their estate upon their death – especially if a new marriage is involved.
Ms.Morris discusses common situations where a person may marry a new spouse but have children from a prior marriage. After the new couple has remarried, they may make a simple Will that gives all of their property to each other. Or, they may not do any estate planning at all and never change an old Will or Trust document.
The problem with this situation is two-fold:
(1) creating a new Will that gives all of your estate to a new spouse may cause your children from a prior marriage to be disinherited, or
(2) the new spouse will now have legally enforceable rights to what is called an “elective share” to the estate even if neither party wanted that to happen.
In the first situation, many people may not conduct extensive estate or retirement planning after a divorce or death of a spouse. The living spouse may then remarry. Let us also assume that the living spouse made a Will or Trust during their previous marriage. That Will likely leaves property to the now deceased spouse and children of the marriage. However, when the living spouse gets remarried, he or she may forget to do estate planning. Or, that person may think that no estate planning is necessary because they already have a Will.
Thinking that a prior Will or Trust document from previous marriage is sufficient estate planning is a mistake. As I stated, the new spouse often has what is called an “elective share” of the marital estate. In other words, the new spouse has the ability to take against the other spouse’s estate even if that person did not want them to. The laws of most states in America provide that a disinherited spouse can take an elective share.
How large can an elective share be? In many states, depending on how big the estate is and who the beneficiaries are, the disinherited spouse can take anywhere from 25% to 50% of the marital estate. Think about what this means: if a person does not do proper estate planning and discuss their wishes clearly with their family, a new spouse may be able to take up to half of an estate – even if the couple was only married for one day.
Obviously, this can create complication and hurt feelings. The solution: talk to a estate planning lawyer in Apple Valley MN and discuss the issues with your loved ones before it is too late.
For further questions about new marriages and conducting estate planning, please contact Joseph M. Flanders at flanderslawfirm.com.
