Second Marriages and Estate Planning: Navigating the Complexity

Entering into a second or third marriage can bring a mix of emotions and financial considerations. Unlike our first marriages, we're often older, with fewer working years to recover from a financially devastating split. In this context, I strongly advocate for the use of prenuptial agreements (PreNups) to safeguard each party's baseline financial security in the unfortunate event of a divorce.

One of the most challenging aspects, in my experience, is dealing with adult children from previous marriages. It's rare to encounter a second marriage without some strain caused by the respective children of both partners. Without a well-thought-out plan, this can lead to conflicts akin to World War III, particularly when it comes to the ownership of the primary residence.

Consider this scenario: I'm the homeowner, and my new, younger husband moves in. He might express the intention to have his name added to the deed, assuring me that 'of course' my children will eventually inherit the house. Can I trust these assurances? It's not always that simple.

The competing interests of children who wish to inherit the house upon death and a spouse who wants to occupy it can be a complex puzzle to solve. Many opt for what seems like a reasonable solution but often proves imperfect. Estate planning documents stating, 'I leave 'Fabio' a life estate in my home, and upon his death, it goes to my children' might sound acceptable. However, what if Fabio moves out? What if he requires nursing home care? What if he remarries and relocates his new spouse into the house? In each of these scenarios, Fabio is still alive, which means my children can't even access the property to retrieve their cherished belongings.

A better approach is to craft estate planning documents that specify: 'Upon my death, provided no divorce proceedings have been initiated, Fabio has the right to occupy the home until the earlier of his voluntary departure, remarriage, or permanent residence in a nursing facility.' These conditions can be tailored to your specific concerns and circumstances.

When it comes to estate planning and asset protection, remember that one size does not fit all. Tailoring your plan to your unique situation is the key to ensuring your peace of mind and your family's future security.

Ann-Margaret Carrozza is an Estate Planning and Elder Law Attorney, who previously served as a NYS Assemblywoman.  www.myelderlawattorney.com