& ESTATE PLANNING
July 17, 2022
Those who remarry face new choices in how to approach estate planning. If they had a previous will or trust, it will need to be revoked, rewritten, or amended to account for life’s new realities. If there is no estate planning instrument in place, such as a will or living trust, then it’s time to begin planning for the future, which includes provisions for when you pass away.
Since California is a community property state, a surviving spouse in the event of the death of the other spouse is entitled to half of all assets that were acquired during the marriage, but not those acquired prior to marriage or during marriage through inheritance or a gift. If there are children from the previous marriage or the new marriage, a will or trust should address how they will be provided for.
If you are entering a second marriage or already have in Redlands, California, contact The Elder & Disability Law Firm, APC, to review your estate planning needs, whether for new legal instruments or to revise or recreate existing documents. You don’t want to leave matters to a probate court judge to decide the distribution of your estate after you’re gone. We proudly serve clients in nearby Rancho Cucamonga, Riverside, and Palm Springs.
RIGHTS OF A SURVIVING SPOUSE UNDER
As mentioned above, California is a community property state, which means that a surviving spouse is entitled to 50 percent of all assets acquired during the marriage. Separate property is excluded from the calculation. Separate property includes anything acquired prior to the marriage or during the marriage through inheritance or a gift.
However, even separate property can become commingled, which makes the division more complicated. For instance, one spouse may own a piece of property prior to marriage, but during the marriage, the other spouse contributes to making mortgage payments or upkeep and maintenance. The property then becomes commingled and can be subject to division.
Likewise, for an individual bank account, if the new spouse deposits money, it can also become commingled. Commingling of assets can be a tricky issue, so it’s always best to rely on the guidance of an experienced estate planning attorney when it comes to issues of preserving separate property.
Though California is a community property state, both spouses can agree to a prenuptial agreement that will designate some or all of the property not to be communal, but separate. This can settle the issue once and for all.
WHAT TO CONSIDER
In addition to a prenuptial agreement mentioned above, if you’re planning on a second marriage, children from the previous marriage must be taken into consideration. Depending on their age, they may end up living with the new spouse as stepchildren.
If you’re planning on having more children in the second marriage, then that becomes another issue to be considered, especially when it comes to estate planning. Who is going to get what from the estate? Remember, the surviving spouse is legally entitled to 50 percent of all marriage assets unless a prenup changes things.
Legal documents you need to review and update include any existing will or trust, any power of attorney bestowed on the previous spouse, and any beneficiary designations on retirement plans or insurance policies.
A lot of this may have already been taken care of in divorce proceedings, but you need to review it carefully and plan for your new future. You need to be especially mindful of beneficiary designations. You may have overlooked that your former spouse is still on your life insurance policy or 401(k).
If you and/or your new spouse have substantial amounts of separate property, you should consider setting up separate property trusts to retain ownership, along with the right to distribute as you wish to your beneficiaries. A marital trust, which comes in different shapes and sizes, can be used to transfer assets to the surviving spouse while ensuring that your children get their share as well.
HOW THE ELDER & DISABILITY LAW FIRM, APC CAN HELP
As you can see, there are many considerations and estate planning choices to be made when you remarry. Wills and trusts are the most common instruments, but they can be worded in different ways to accomplish specific goals unique to you, your relationship, and your family.
We at The Elder & Disability Law Firm, APC, are experienced in all phases of estate planning. We will meet with you, discuss your unique situation and needs, and help you draw up the legal instruments to provide peace of mind for you and your loved ones going forward.
We proudly serve clients in Redlands, California, and neighboring Rancho Cucamonga, Riverside, and Palm Springs.