Second Marriages

Second Marriages can be delicate when it comes to estate planning. Nearly every couple who comes into to see us who is married for a second (or subsequent) time have agreed between themselves that their respective estates shall be preserved intact for their own families (usually consisting of their own children). In actuality, without more advanced estate planning, this seemingly simple goal is nearly impossible to achieve, even within the best intentioned families. There are marital rights which must be addressed, especially if there was no prenuptial agreement and the recurrent use of payable upon death and joint accounts with rights of survivorship must be critically reviewed.

Have you ever considered what would happen if your spouse was incapacitated at your death, and it was actually his or her children, or a court appointed guardian, calling the shots? Although you and your spouse may whole heartedly agree to handle your estates under a ‘gentlemens’ agreement, upon your death your surviving spouse’s children (or family) may not agree to do so. Apart from greed, the most common reason for family members to ignore informal agreements is the ever increasing costs of long term care. Faced with a choice of ignoring your informal agreement or running out of money to provide for the long term care of their own relative (your surviving spouse), most will choose to ignore your wishes and enforce the surviving spouse’s Elective Share rights, exempt property rights, homestead rights, and other spousal rights provided for under Florida law. Collectively, these rights can be substantial, and easily exceed thirty percent or more of your total estate, including assets which pass by beneficiary designation and joint ownership to others.

 If you have not 'tied the knot' yet, you should consider some form of a prenuptial agreement, and if you have already married, should consider some sort of post-nuptial agreement while you are both able to do so. Though this type of document is popularly associated with protecting ones assets from an unscrupulous spouse, more often than not its greatest benefit is in clearly setting forth the agreed upon decisions, in a legally enforceable document, made by you and your spouse for the benefit of your collective heirs. It can help prevent disputes between your family and your surviving spouse at your death, and can protect your estate in the event that others are acting on behalf of your spouse (especially if incapacitated). In these agreements, you are permitted to each waive the rights you might otherwise have in each other’s death time estates and take temptation ‘off the table’.

Pre and Post Nuptial documents are not easily drafted documents, require certain formalities and language to be enforceable later, and are constantly being modified and interpreted based upon current judicial decisions. Therefore these documents should only be created in consultation with your attorney.
 

©2007-2009 Law Office of Thomas W. Rezanka. All Rights Reserved.