Sometimes the first marriage just doesn’t work out. That said, so many folks are finding love and companionship for the second time around! The number of second marriages in the US is higher than ever before. Most of these happy second-timers have a significant age difference between them which comes with many unseen obstacles that can be planned for and possibly avoided altogether. For those of you who have had the big wedding day #2 and are older or younger than your spouse, we’ve put together a few considerations and tips to make your second marriage the most successful. 

After the honeymoon, it’s a great idea to have a few important items front-of-mind for the future of your second marriage. These considerations aren’t given to rain on your love parade and say that it won’t work out. Quite the opposite, in fact. The family law professionals at McCart & Tesmer want you and your new partner to have all of the facts in place and the pro’s and con’s weighed so that you can be proactive and successful the second time around. 

  • Estate Planning should be a high priority in your considerations with your new partner. Did you know there is a Legal Right to Inherit? Absent a prenuptial agreement or postnuptial agreement, if you never update your estate plan, the new spouse is entitled to  the“pretermitted share” equal to a value ranging from 50% of the probate estate to the entire probate estate depending on the circumstances.  Your new spouse may also be entitled to  the “elective share” equal to 30% of the aggregate estate. If you plan ahead with your estate, you can be sure that everything lands where it should if things do play out well for the marriage or one spouse dies.
  • Because of an age difference in the coupling there is a high likelihood of one spouse outliving the other spouse. 
    • It is vital that the both spouses decide how to handle providing care for each other when necessary (day-to-day, long term care, hospice).
    • It’s a good idea to set up a Trust – 
      • A trust allows for intentional distributions to be set for a surviving spouse.
      • If there is a child from a different relationship, a trust can be set up to reserve money for that child as well.
      • A trust can also act as a safeguard to prevent the surviving spouse from depleting all assets.
      • If a surviving spouse remarries, it could prevent any family wealth from passing to the surviving spouse’s new spouse.
  • When one spouse passes away, the surviving spouse can be left with a mess to clean up. That said, if properly planned for, this unfortunate event doesn’t have to be messy. 
    • Decide on beneficiary designations ahead of time.
      • Depending on the terms of a prenuptial agreement or postnuptial agreement, there could be money left to the surviving spouse.
      • As part of an estate plan, the deceased spouse could leave specific amounts of money to children outside of the will or trust (this would likely still be subject to the “elective share”).
      • Planning ahead can allow money left to be used for the younger spouse’s continued needs

What if the second marriage doesn’t work out? It’s important to think ahead in order to avoid a lengthy dissolution of the marriage. First, both parties should have their own counsel before moving forward with any legal matters. Once that is done, both parties should consider and agree upon whether a Prenuptial or Postnuptial agreement would work best for the couple if things go south. Both options will help avoid a lengthy dissolution of the marriage but there are pros and cons to each.

  •  A Prenuptial Agreement is an agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce or death.”
    • This option is one that allows all parties to make an agreement before they are legally bound. 
    • Both parties must disclose all assets 
    • Gives the couple an opportunity to address alimony and whether or not it will be waived before the relationship fails.
    • A Prenuptial Agreement, in effect, allows the couple to get ahead of emotions that will surely arrive if the relationship fails.
    • This option can feel transactional but it is necessary to protect your assets especially when a second marriage is involved..
  • A Postnuptial Agreement is an agreement between couples after they are married so they can each protect themselves in the event of a divorce. This agreement is a legal contract that outlines how assets will be divided and what each individual in the marriage is entitled to should they divorce. It may also include other provisions that the couple agrees on.”
    • A Postnuptial Agreement is like a Prenuptial Agreement, but instead of before, it’s made after marriage has taken place. 
    • A Postnuptial Agreement requires additional “consideration” which is the exchange of something of value, such as property, money, services or a promise.
    • Alimony can still be considered with this option but this might be tougher to decide on once legally married.
    • As a part of the agreement it is possible to waive entitlement to each other’s estates and inheritance.
    • Oftentimes a Postnuptial Agreement will include the agreement to provide life insurance if the greater earning spouse dies.

Having all of the facts out in the open makes it much easier for your and your new spouse to make the right decisions for your relationship from the get go. It can be tough to think about what happens if things don’t go as planned. But if you have done the work of planning ahead, those things that seemed like roadblocks before, become things that have already been dealt with and decided. Still have questions regarding your second marriage? With nearly 20 years of experience, McCart & Tesmer specialize in both Family Law and Estate Planning. Click here to drop us a line and/or schedule your Free Consultation today!

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