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Second Marriages & Estate Planning

The Law Office of David G. Bale March 26, 2022

If you’re getting remarried in Ohio, you may have gone through divorce proceedings, during which your marital assets were divided according to the state’s principle of “equitable distribution.” Your new spouse – and your new life – will require you to revisit your estate planning.

If you own a home, do you want your new spouse to join you on the title? Or, do you want to leave it in a will or trust to your children? If you’re planning to have more children with your new spouse, how will they figure into your beneficiary plans?

A second marriage presents many questions and challenges when it comes to estate planning and providing for your loved ones when you’re gone. Having children and accumulated assets from more than one marriage can significantly complicate your planning.

If you’re entering into a second marriage in or around Westerville, Ohio, contact The Law Office of David G. Bale to discuss your situation and create an estate plan that fulfills all your wishes for you and your loved ones. The firm also proudly serves clients in the neighboring communities of Worthington, New Albany, and throughout Delaware County and Franklin County.

Rights of the Surviving Spouse in Ohio

A surviving spouse cannot be written out of a will in Ohio. If Spouse A leaves his or her residence to his or her children through a last will and testament, the surviving spouse has five months to challenge the will. So, if the children decide to sell the property, the surviving spouse can be entitled to a share of the profits.

If Spouse A leaves a will and writes out Spouse B, then Spouse B can challenge the will, which is called “to take against the will.” If there are fewer than two children or surviving lineal descendants of Spouse A, Spouse B will then be entitled to one-half of the net estate. If there are two or more surviving children, the share will be one-third.

It gets even more complicated if Spouse A dies without a will, which is called dying intestate. In that case, Spouse B will get the whole estate if there are no children from a previous marriage. If there are children from the same marriage to Spouse A and no other children, Spouse B gets the entire estate.

If there is one child from a previous marriage for Spouse A who has not been adopted, then the first $20,000 of the estate and half of the remaining value goes to Spouse B. It gets even more complicated if there is more than one child of Spouse A’s previous marriage who has not been adopted. In that case, the first $20,000 and one-third of the remaining estate go to Spouse B.

A way around the will provision and intestate laws is to set up a living trust and name a trustee to manage your estate when you’re gone. In that case, there will be no probate court to supervise the distribution of assets, but challenges to assets in a trust are still possible.

Second Marriage Estate Planning Considerations

In a second marriage where both partners have children, either together, from a previous relationship, or both, the two spouses must decide upon how their assets will be distributed. This can be complicated when one spouse brings significant assets to the marriage and the other does not. In this case, you may want to consider a prenuptial agreement before tying the knot.

Before remarrying, you may also opt to place your assets in a trust and name your beneficiaries to be administered by a successor trustee when you’re either incapacitated or deceased. If you have a will, you will certainly want to update it, but you should confer with a knowledgeable estate planning attorney on the best route to take. Living trusts avoid probate proceedings, which can save both time and money.

If you own real estate in your own name, you might think it’s a good idea to add your new spouse as a joint tenant with the right of survivorship. If you do, however, that means your surviving spouse will inherit the estate and do with it as they will despite what you specify in a will or trust.

This brings up another important consideration; you need to review and update the beneficiaries named on your retirement plans and life insurance policies. Beneficiaries to a 401(k), IRA, or life insurance policy get the funds outright without any recourse to probate court or trust management. If your previous spouse is so named, proceeds will go to that person.

When Remarrying, Consult With Your Estate Planning Attorney

If you’ve lost a spouse through divorce or death and you’re remarrying, it’s not only a chance to start a new life and fulfill your dreams, but it’s also a time to revisit – or commence – your estate planning. David Bale will meet with you, discuss your unique situation, and present you with the best options for giving you and your loved ones peace of mind going forward.

If you’re in or around Westerville, Ohio, contact him at The Law Office of David G. Bale.