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Second Marriages Unintentionally Disinheriting Your Children Part 1

This edition of the Koldin Law Center E-Newsletter is part of a series on Second Marriages.

In this newsletter we discuss how your children can be unintentionally disinherited.

All prior newsletters are saved on our website. You can read them by clicking here.

Second Marriages create very complicated Estate Planning situations.  Estate Planning needs to be carefully discussed and legal documents need to be written to meet your objectives.

Very often we have second marriage clients come to our office with Joint Assets, Wills and Retirement Accounts that leave everything to each other and then to his/her own respective children.  The following example illustrates:

Example 1:  John and Sally are married for the second time. John’s Will and IRA leaves everything to Sally, if living, otherwise to John’s 3 children. Sally’s Will and IRA leaves everything to John, if living, otherwise to Sally’s 2 children.  John and Sally own a joint savings account with $50,000 and have a joint brokerage account with $250,000.

In the above example, if John dies first, Sally will inherit John’s life savings from his Will, IRA, and Joint accounts.  When Sally later dies, her children inherit everything from her Will and IRA.  John’s children do not inherit anything.

If Sally dies first, John will inherit Sally’s life savings from her Will, IRA, and Joint accounts.   When John later dies, his children inherit everything from his Will and IRA.  Sally’s children do not inherit anything.

So, the children of whoever dies first becomes unintentionally disinherited.

Leave to Both Sides of the Family in Both Wills and Both Retirement Accounts

One solution is for John and Sally to leave everything to all the children in both of their Wills. The following example illustrates:

Example 2:  John’s Will and IRA leaves everything to Sally, if living, otherwise ½ to John’s 3 children and ½ to Sally’s 2 children. Sally’s Will and IRA leaves everything to John, if living, otherwise ½ to John’s 3 children and ½ to Sally’s 2 children. 

In Example 2, it doesn’t matter who dies first.  All the children will inherit on the death of the 2nd spouse.

However, Example 2 relies on the surviving spouse never changing his/her Will and IRA beneficiaries.

Risk:  Surviving Spouse Can Later Disinherit Deceased Spouse’s Family

After John’s death, Sally might remarry again.  Sally might no longer have a close relationship with John’s children.  Sally might decide that she would rather leave everything to her new spouse or to her own children and leave nothing to John’s children.

Disinherit Your Spouse

One way John and Sally can guarantee that their own respective children inherit is by disinheriting each other and leave everything to their own children directly.

John’s Will and IRA could leave everything to his 3 children and Sally’s Will and IRA could leave everything to her 2 children.  They would also have to make sure that no accounts are joint with right of survivorship.

Another option would be to partially disinherit your spouse.  For example, John could leave 25% to  Sally and 75% to be divided by his children.

Another option is to provide for the spouse from Joint Accounts and/or IRAs but disinherit spouse from the Will.

The problem with spouses disinheriting each other is that this could place the surviving spouse in a financial crisis. Spouses might want to provide for each other, especially in second marriages of longer duration.

For a discussion of Wills, please see our website by clicking here.

The next edition of the Koldin Law Center E-Newsletter will review the use of Trusts as an option to provide for your spouse and to make sure that your own children do not unintentionally lose their inheritance.

At the Koldin Law Center, P.C., located in East Syracuse, New York, we have over 50 years of experience helping individuals plan for immediate crisis and long term care. Our attorneys are available to discuss your estate planning options, including the advantages and disadvantages of Revocable Trusts and Irrevocable Trusts, along with other estate planning considerations including a Will, Power of Attorney, and Health Care Proxy. We do not charge a fee for the initial consultation.  We welcome your children, family attorney, accountant, and/or financial planner to be present at the initial consultation.

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We all share the responsibility for making our family and friends aware of the planning options available to them.

Your referral to the Koldin Law Center could make a major difference in the lives of your family and friends if they are someday faced with a long term illness.

Remember that the Koldin Law Center offers many services for clients of all ages. Our services range from basic estate planning such as a simple will to complex estate planning including asset preservation planning.

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