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Estate Planning in Second Marriages

Nashville Lawyer Advising You on Preserving Your Assets

Tying the knot a second time can be a joyful occasion. However, it can also present certain challenges for the purposes of estate planning because more family members from different marriages need to be considered. You will need to consider any contractual or court-ordered obligations that you have with a prior spouse, and you will also need to discuss property, long-term goals, and end-of-life wishes with your new partner. If you are concerned about estate planning in second marriages, you should consult experienced Nashville estate planning attorney Randy Ratliff.

Estate Planning in Second Marriages

In a second marriage, each spouse may be bringing different assets and obligations into the situation. They may have children from prior marriages to consider when deciding how wealth should pass. They may also have property held jointly with a prior spouse, or they may have a prior spouse listed as a beneficiary. It is usually necessary to review the plans in place in each spouse's prior marriages, including their wills, trusts, and powers of attorney. An entire will, trust instrument, or power of attorney may need to be redrafted with these new conditions in mind.

Sometimes an arrangement in a prior marriage can significantly affect estate planning in a second marriage. For example, the court may have ordered you to keep your ex-spouse as a beneficiary on a pension or retirement account. You may not be able to update this designation, even if your new spouse would like you to do so.

You may come out of a first marriage with different ideas about marital property than those that you had going into that marriage. If you come into your second marriage with a different degree of wealth from your spouse, you may need to discuss whether those assets are going to be kept separate or commingled. When there are trusts set up to take care of children from a first marriage, this can factor into whether a couple commingles their property during the second marriage.

The way that property is held matters for estate planning purposes. When property is held as joint tenants with rights of survivorship, the assets will pass directly to the surviving account holder, and there is no need for probate. When property is held for transfer on death, the assets will pass directly to a person named as a beneficiary. It is important to keep in mind that if you name your new spouse as a beneficiary, but you have children from a prior marriage, your new spouse can choose to name whoever they want as a beneficiary after your death. This means that your children may not receive anything, unless you specifically provide for them.

In second marriages in which there are children from a prior marriage, spouses in Tennessee have created contracts to execute wills. Each spouse agrees to leave specific property to the other spouse with the understanding that whoever survives is supposed to bequeath the property to the children of the first spouse to die after the survivor's death. After the contract is executed, the spouses execute wills that are consistent with this valid, enforceable agreement. The Tennessee Court of Appeals has upheld the validity of this type of contract in situations in which children of the surviving spouse persuade the surviving spouse to change the will, such that the stepchildren are disinherited. Generally, there are better solutions, however, such as making sure that children will receive assets upon the death of the first spouse to die.

Property that will not pass automatically may be covered in instruments such as a will or a trust. Certain kinds of trusts can help ensure that property is transferred and probate is avoided.

Discuss Your Needs with a Skillful Nashville Attorney

Randy Ratliff may be able to advise you and represent you in connection with estate planning in a second marriage and the related complexities. He assists clients throughout Davidson and Williamson Counties, including in Nashville, Brentwood, Goodlettsville, Joelton, Franklin, Cool Springs, Antioch, Hermitage, and Madison. Set up an appointment with an experienced lawyer by calling 615-656-8282 or using our online form.