A second marriage can have a profound affect on the estate of the spouses of the marriage. Concerns of each spouse should take into account how the marriage will affect their assets and how their assets will be distributed upon their deaths.
What Rights Do I Have?
A spouse in a marriage attains certain legal rights over the other’s assets, both during their time of marriage and at the time of the first spouse’s death.
These rights include:
These rights include:
- The right to financial support during the asset administration period
- The right to inherit a portion of the deceased spouse’s assets if there is no will
- The right to administer the deceased’s estate if there is no will
There a few different ways by which spouses can ensure that their assets are distributed in the manner of their choosing. These can include:
- Premarital or prenuptial agreements
- Joint ownership
- Wills and trusts
Prenuptial agreements can be used to help protect funds that were originally allotted for children’s education or for retirement, prior to marriage. Prenuptial agreements usually provide that upon the other spouse’s death or divorce, neither spouse will have a claim against the other spouse’s assets.
In joint ownerships, a couple can jointly own assets and name each other as his/her benefactor. Upon the first spouse’s death, all of the deceased’s assets may pass to the surviving spouse by survivorship rights. At the time of the surviving spouse’s death, those assets will then be passed according to the surviving spouse’s will or living trust.
Reviewing and revising existing wills and trusts or creating new ones can also ensure that assets are distributed according to your wishes. You may wish to check that your former spouse is not still named a beneficiary in your will or trust, and also to add in any additional beneficiaries from your second marriage, including your spouse and any new children as a result of that union.
Do I Need to Consult an Attorney Regarding These Premarital Issues?
Drafting wills and trusts can be a complicated issue by which a family law attorney can help advise you on what works best for you. Additionally, in most prenuptial agreement situations two lawyers (representation for each spouse) are required by law in order to finalize the agreement. Speaking with the proper attorney will help you understand your rights and protect your interests.
