Second Marriages Affect Asset Distribution

Almost fifty percent of all marriages are second marriages, and second spouses usually benefit from the same inheritance rights as first spouses. The following is a brief summary of where assets may go when a person dies when married to a second spouse:

If there’s no plan.  If the deceased did not have a will, the surviving spouse will get 100% of the estate in 16 states and in most other states, will split the estate in half with the kids.

If there’s a will. The deceased cannot disinherit a surviving spouse with a will. In most states, spouses are entitled to elect against the will and if they do, their elective share is usually 1/3 to 1/2 of the estate.

If there’s a prenup. The prenuptial agreement is the only way to disinherit a spouse, but courts do not like agreements that seem like bully situations.

If there’s a trust. A Q-Tip trust pays income to the surviving spouse, and the remainder of the assets pass to the children upon the death of the surviving spouse.

See Brad Reagan, Second Spouses:  Passing It On, SmartMoney, March 19, 2009; see also my previous blog on Late-in-Life Marriages. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this to my attention.