Estate Planning Before a Second Marriage

Estate Planning can help the bride and groom, especially if:

  • you are planning a second marriage, and you have children (and grandchildren) from a previous marriage
  • you or your spouse-to-be have never been married, and you are approaching retirement age, or you are already retired.

If you are making plans for marriage, please call us now, for ways to make your wishes and intentions come true:

  • Prenuptial Agreement - with this advance planning tool, the couple contemplating marriage can make sure their individual wishes are carried out, rather than the state and federal laws that would otherwise determine how assets are distributed upon death.
  • QTIP Trust - this arrangement allows a person to preserve an inheritance for adult children from a first marriage, while providing lifetime support for their surviving spouse.
  • Irrevocable Life Insurance Trust - the "ILIT" sets up a fund for the children from a previous marriage, separate and apart from the estate of the parent who has remarried.
  • Health Care Proxy - to name the person who will speak for you, if your spouse is unable to manage you medical treatment
  • Durable Power of Attorney - to give your spouse and your designated back up person the authority they would need to manage your assets, if you become unable to do so.

Without estate planning, your assets will be subject to the state and federal laws that restrict how the asset can be distributed upon your death. And, there are state and federal laws that have an impact on assets during the lifetimes of the parties to a second marriage. Here are examples of the laws that we will look at with you:

  • MassHealth / Medicaid - Spouses are responsible for each other's long term care costs, and health care costs. With a few exceptions, the Medicaid program considers assets owned by either spouse "available resources" to be spent down for nursing home care during the lifetime of the spouse who does not need the nursing home care.
  • Spousal Waiver of Will - In Massachusetts, a spouse can waive a Will and take the statutory share that is set up in Mass. Gen. Laws ch. 191, §15. Court cases have expanded this to include not only probate assets, but also inter vivos trusts!
  • Rights of the of the Surviving Spouse - right to remain in deceased spouse's house for only six months.
  • Creditor's rights to claim against deceased spouse's assets. In Massachusetts
  • Intestate claims by family members claiming under Massachusetts intestacy laws.
  • Will Contests - Claims by family members who contest the decedent's will
  • Taxes - Arguments over who will pay the income and estate taxes can be eliminated with careful estate planning. Mass. Gen. Laws ch. 65A §5 says that taxes are to be “equitably apportioned among and charged to and paid by the recipients and beneficiaries of property or interests included in the measure of such tax and passing or arising otherwise under the will of the decedent or by virtue to any such trust.” Specific directions in a Will can relieve specific property from the burden of taxes and expenses. A tax clause in a Will or Trust can determine how much you give to your heirs, instead of the state law.

Prenuptial Agreements and the Trust arrangements discussed here on our website are important estate planning tools that protect you and your family members. Call us today for an appointment.