Tips from a Clear Lake Estate Planning Attorney on Your Second Marriage and Children

Our clients often come to our Clear Lake estate planning attorney with concerns about property division after a second marriage. For example, if you have children from a prior relationship, and you pass away before your new spouse, he or she could make different choices regarding assets and your children. While you might not be necessarily concerned about taxes, you might wonder about protecting your material possessions for your children while providing for your second spouse at the same time. When the second spouse dies, the first spouse wants to ensure that his or her children receive an inheritance according to their wishes.

Ways to Protect Your Children

You can provide for a second spouse and protect your children in one of the following ways:

  1. Setting up a contract in your will: Each spouse can draw up a will that leaves all assets to the other person but then divides assets between both parties. The parties include a provision in the will that says the contract cannot be changed. However, if the surviving spouse is sued, remarries or divorces, the assets might be drained by outside legal action although the will won’t change.
  2. Setting up a trust within your will: Another option is to include a trust or a living trust in your will. The surviving spouse is named as the beneficiary, but distributions are limited and any children who are named will have access to some funds. The trust can list the spouse and a third party as co-trustees in order to further protect your assets. When the spouse dies, then the remaining funds are divided accordingly. This approach offers several benefits and protections of trust assets, such as
  • Protection from changes by your spouse
  • Protection from a new partner in the event of your spouse’s remarriage
  • Protection if your spouse later divorces
  • Protection from creditors in the event that your spouse faces financial difficulties

Elective Share

Every state has an elective share law that says that you must leave a minimum percentage of your estate to the surviving spouse, even if your will says otherwise. This amount differs, depending on the state, but the minimum percentage usually ranges from one-third to one-half. Some states increase the percentage according to how long the couple has been married. In order to find out more about this legislation, talk to our Clear Lake estate planning attorney about a pre- or post-marital agreement that might effectively remove the restrictions of this law.

Contact Our Clear Lake Estate Planning Attorney

The Law Firm of Badeaux & Associates understands the nuances of second marriages, and your personal assets could be affected if you do not have a will. You can reach our Clear Lake Estate Planning Attorney at (281) 486-4737 for assistance with your legal matters.