Navigating Estate Planning in Second Marriages: Expert Advice

Posted by Skyseo Roundtable on February 16th, 2024

Your Estate Plan and a Second Marriage

Even while love is more beautiful the second (or third...) time around, it is far more difficult.


We are often older, for starters. This implies that we will have fewer working years left to recuperate from a divorce that would have been financially disastrous. In my opinion, having a prenuptial agreement is crucial for ensuring that each party has a minimum level of financial stability in the event of a break.

Adult children are, in my opinion, the most complicated factor. I haven't seen a second marriage when the parties' respective kids don't cause conflict. In the absence of a solid strategy, the death of the first spouse frequently triggers World War III. Usually, this entails being the owner of the primary residence. My younger husband will probably want his name added to the deed if he moves in and I am the home's owner. "Of course take care to ensure that my children ultimately get the house," he will promise me. Do I have to believe him? Not at all!

Many people put into practice a strategy that looks nice but isn't in order to reconcile the conflicting concerns of a spouse who wants the house upon death and children who want it upon death. My estate planning documents currently state: "I leave 'Fabio' a life estate in my home, and upon his death, it goes to my children." This is an imperfect approach. All well and good, but what would happen if Fabio moved out? Is he in a nursing home, or what? Or does he get remarried and relocate with his new spouse? Since Fabio is still alive in each of these scenarios, my kids are unable to even access the property to retrieve their baby photos.

An improved course of action would be to include the following language in the estate planning documents: "Fabio has THE RIGHT TO OCCUPY the home upon my death, provided no divorce proceedings had been commenced, until the earlier of his voluntary departure, remarriage, or permanent stay in a nursing facility." These terms are negotiable based on your specific concerns.

There is no one size fits all solution when it comes to asset protection and estate planning!

Former NYS Assemblywoman Ann-Margaret Carrozza is an attorney specializing in elder law and estate planning. https://www.myelderlawattorney.com