Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, April 26, 2010

Second Marriages Affect Asset Distribution

Prenuptial agreement Almost fifty percent of all marriages are second marriages, and second spouses usually benefit from the same inheritance rights as first spouses. The following is a brief summary of where assets may go when a person dies when married to a second spouse:

If there's no plan.  If the deceased did not have a will, the surviving spouse will get 100% of the estate in 16 states and in most other states, will split the estate in half with the kids.

If there's a will. The deceased cannot disinherit a surviving spouse with a will. In most states, spouses are entitled to elect against the will and if they do, their elective share is usually 1/3 to 1/2 of the estate.

If there's a prenup. The prenuptial agreement is the only way to disinherit a spouse, but courts do not like agreements that seem like bully situations.

If there's a trust. A Q-Tip trust pays income to the surviving spouse, and the remainder of the assets pass to the children upon the death of the surviving spouse.

See Brad Reagan, Second Spouses:  Passing It On, SmartMoney, March 19, 2009; see also my previous blog on Late-in-Life Marriages. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this to my attention.


Death Event Planning, Estate Administration, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink

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Is it appropriate for a child of a first marriage, who is a lawyer, to be a trustee for a trust involving a second wife and child? Wouldn't this be conflict of interest?

Posted by: Dolores DeLuise | Apr 27, 2010 8:01:27 AM

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