As the life expectancy of people in the United States increases, there are more second and third marriages. Widows and widowers are increasingly likely to meet and decide that another marriage is a wonderful way to spend their remaining years. It is often a surprise to the children that Mom and Dad have lives of their own and choose to marry again.
When Mom or Dad marries again, the children begin to wonder about their inheritances. It's a classic tension. Everyone has strong opinions in this situation. Some believe that Mom or Dad, having supported the children to adulthood, has no further obligation to children, and should arrange his estate as befits his or her responsibility as a spouse. Some may want to make sure that the children from the prior marriage retain eventual rights to Mom's or Dad's property. Others feel that the children's rights to the property need to be carefully balanced with caring for the new spouse. And what about Step-Mom's children and any children Dad and Step-Mom have together? There are as many different plans and desires as there are families.
The law aims at what legislators believe is the average case. The legislature passes laws that it hopes will work in most situations. In the real world, obviously, there are many differences and variations. The basic inheritance laws are simply not designed to handle the second marriage. The law gives a new spouse the same rights that the first spouse had which may not be appropriate because the new spouse is not the parent of the children from the first marriage.
Therefore, the law also permits couples to contract with each other, to modify the "usual" rule to suit their particular circumstances. Care must be taken to make sure that any contract between prospective spouses or current spouses is enforceable under applicable law. Making such an agreement is strongly recommended to be sure that there is no misunderstanding and that the children (his, hers and theirs) and the surviving spouse receive what is intended.
A pre- or post-nuptial agreement, which spells out the rights, duties and obligations of the new couple, is the best way to plan for a couple's unique situation. Entering into a pre- or post-nuptial contract in order to care for multiple different sets of loved ones shows responsible concern for the spouse's welfare and the welfare of the children. It should not be viewed as a lack of trust or commitment to the second spouse.
In a pre-nuptial agreement both the future husband and future wife disclose all of their assets and make agreements about the ownership and succession of their respective properties. It is common for each of them to make provisions for the other but to require that property brought to the marriage ultimately goes to the children from the first marriage.
These contracts are usually made before the marriage takes place. Why? Under old common law, this was required. A husband and wife could not contract with each other so any contract had to be solemnized before the marriage took place. Modern law has changed this and a husband and wife are free to make contracts between them. Post-nuptial agreements are now common.
Again, making such a contract does not show lack of trust. Making the contract is taking good care of your new spouse and the rest of your family. It should be viewed just like making a will. After all, the law will distribute your property if you leave no will. By making a will you make sure your personal intentions are carried out. It is the same with a pre- or post-nuptial agreement -- you make sure your intentions are carried out instead of relying on the default provisions written by the state legislature.
Keep in mind that without an agreement between the spouses, the rights of children are determined in a lottery - whether they "win" depends on which spouse dies first. Make a plan. Something this important shouldn't be left to chance.
Trusts are an another important part of this type of planning. By using trusts it is possible to benefit different classes of beneficiaries from the same property. This is often an ideal way to provide for income to a surviving spouse with the ultimate ownership of the principal going to the children. Multiple objectives can be attained with a trust, and its provisions can be hand-tailored to the situation. With this sort of split trust, the choice on trustee is a key element and a professional fiduciary can be invaluable. Neither the surviving spouse nor child will be well suited to making the distribution and investment decisions that will be necessary in this situation.