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Second Marriage and Estate Planning

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Individuals who have remarried face unique estate planning challenges in Naples, Florida. People entering their second marriage usually do so later in life when they have more property and children from previous marriages. Because of this, many of the planning strategies that work well for first marriages are inappropriate for remarried individuals.

Will My Children from a Previous Marriage be Protected if I Have a Will or Trust?

A significant estate planning concern for many remarried individuals is providing for children from outside the relationship. Unfortunately, this is not as simple as including these wishes in your will or trust. Florida has laws designed to protect a surviving spouse that override the instructions in a will or trust, including the rights of a pretermitted spouse, elective share, and homestead election. Failure to engage in proper estate planning could result in devastating and unintended consequences.

• Pretermitted Spouse

If you have a will and do not update it after getting remarried, your spouse will be considered a “pretermitted spouse” under Florida law. This law allows a spouse not mentioned in the will to receive a share of your estate that is equal in value to what they would have received if you died intestate (without a will.) Under Florida intestate laws, a spouse is entitled to 100% of the estate if the couple has no children—or no children who are also not the children of the other spouse. If the decedent has children from another relationship, the surviving spouse is entitled to 50% of the estate. The remaining 50% goes to the decedent’s heirs.

• The Elective Share

Under Florida’s Elective Share statute, a surviving spouse (including spouses of second marriages) is entitled to claim at least 30% of the decedent’s estate rather than accept what is provided in the will or trust, even if the decedent updated the will after a remarriage. The surviving spouse can decide to claim their “elective share” regardless of what your will or trust says.

• The Homestead Election

Florida law gives a surviving spouse the right to continue to live in the homestead property (their primary residence) for the rest of their life. Alternatively, the surviving spouse can decide to force the sale of the homestead property within six months of the decedent’s death and collect one-half of the sale proceeds. The spouse has this right even if you wanted to leave your home to your children from outside the marriage, parents, or some other third party.

Can You Override Spousal Rights in Florida?

In Naples, the only way to protect against spousal rights, such as the elective share and homestead rights, is through a premarital or post-marital agreement. Many people only think that the only purpose of premarital agreements is to plan for property distribution in the event of a divorce. However, in Florida, this document is critical to estate planning if you are remarried. A pre or post-marital agreement is the only way that you and your spouse can waive your rights to an elective share and homestead rights.

The premarital agreement must be in writing and signed by both parties and two witnesses. A qualified Naples estate planning attorney can ensure that your premarital agreement is legally valid.

Can’t I Just Trust My Spouse to Pass on an Inheritance to My Children?

Even if your spouse and their stepchildren have a good relationship, it is not a smart strategy to leave your estate outright to your spouse, even if they promise to pass on whatever remains to your children. First, tensions can arise after your death, straining the dynamic between your children and spouse. Secondly, circumstances beyond the control of your surviving spouse can arise, making it difficult or impossible for your spouse to honor their promise to you. For example:

• Your spouse could be incapacitated at the time of your death, and your spouse’s power of attorney agent or appointed guardian would be the individual who makes estate administration decisions. This individual could decide to choose the elective share to pay for their care.
• One of your spouse’s children could unexpectedly experience financial difficulties. Your spouse could decide to prioritize her children over yours.
• Your spouse may remarry, changing their priorities.

Call A Naples Estate Planning Lawyer

If you have questions about establishing Florida residency, you should contact an experienced Naples estate planning attorney. Contact our offices today at (239) 449-6150 or use our web form to set up a free consultation.

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