Balancing a new marriage with a legacy to children from a prior marriage.

So you're ready to pop the question and get married again. Both you and your prospective spouse have been married before and have children. Before the big day, here's what you should do first.

First - educate yourself about your state's marital law. These laws, called elective share laws, determine how much of your property must go to a spouse. Talk to your estate planning attorney and find out what property the law requires you give to your spouse under your state's elective share.

Questions for you and your attorney to discuss:

Can your spouse force a life estate in your residence if you die first even if it is only titled in your name?  

Does your spouse's share increase over time? (In North Carolina, the spousal elective share increases to 50% of your assets after fifteen years of marriage.  In South Carolina, the length of the marriage does not affect the elective share.)

How is the elective share calculated? Your assets are valued to find the amount of property you must pay to your spouse if you die first. In some states, property passing outside your will is included in the valuation of  your assets and your estate. This is important for determining the amount of the elective share. For example, if you have a million dollar life insurance policy and your children are the beneficiaries, will your new spouse be entitled to a portion of the policy value even though it has another beneficiary listed? 

Second - Talk about finances and your expectations with your new spouse before the wedding day. Setting expectations early can make the difference between a smooth transition to your beneficiaries or a lengthy estate battle in the future. Be sure to discuss expectations regarding your children's inheritance as well with your prospective spouse. 

Questions for you and your prospective spouse to discuss with each other:

What property do you want to stay in your children's family line?

What property do you want your new spouse to have if you die first?  

What property do each of you expect to receive from the other? 

Do any of your children or your prospective spouse's children have special needs that require additional financial support? If so, how have you planned for this?

Once you've reached an agreement about the above, consider a prenuptial agreement to memorialize your discussions.

Third - if your children are old enough, include them in the discussion both privately and possibly with your prospective spouse if it can be done without hostility. If there are lingering issues between you and your children regarding finances or property from your previous marriage, consider addressing those issues so they won't simmer and cause resentment between your children and your new spouse.

Questions for you and your children to discuss: 

Are there sentimental family items that you (or your children) want to remain in the family rather than end up with a new spouse?

Have you created a plan to pay for your children's college expenses that will be protected from your new spouse?

Have you adequately provided for your prior spouse in the divorce? If so, how? (Keep in mind, your children may have heard a different story from your ex.)

These conversations can be difficult. We're here to help you with answers to these and other questions. Remarriages are wonderful but they present special estate planning challenges. Ignoring these challenges won't make them go away. If you are getting remarried and would like to talk with Nancy Roberts, our Charlotte estate planning attorney in Ballantyne, call 704.887.5242 to schedule a consultation.


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