Estate Planning Consideration for Children from a First Marriage

Children of a first marriage can be at significant risk for disinheritance when a parent remarries. Sometimes, it is intentional, especially where there is a lack of relationship between the parent and the children as a result of the acrimony in the divorce. Sometimes, the law requires that the parent supports the new spouse, such as with respect to elective share claims or pensions etc. Most of the time, there are second families involved, with younger children that the parent feels a duty to support.

Practically, children from the first marriage have little ability to influence their parent's decisions. However, there are ways to protect those children starting at the divorce stage. Most divorcing couples have provisions in their divorce judgment to provide for their unemancipated children. With some effective lawyering, those same provisions could be expanded beyond emancipation, by requiring life insurance for the benefit of the children even in adulthood, or requiring that the other spouse creates an estate plan leaving the divorce assets to those children via a trust or will.

Once the parent is divorced and contemplating re-marriage, a well drafted pre-nuptial agreement could secure assets for the benefit of the children from the first marriage. By identifying assets that will be omitted from the marital estate and segregating them from the second spouse, the parent can effectively protect the children of divorce. If the terms of the pre-nuptial are abided by both spouses and assets that were pre-marital are not co-mingled during the marriage, the children of the first marriage can receive what was intended for them.

In the estate planning stages, the easiest thing is for a parent to create a Will that addresses the children of the first marriage, by creating a testamentary trust for the benefit of the spouse. In that trust, the monies can be used for the benefit of the spouse during her lifetime but leaves the remainder to the adult children from the first marriage upon the death of the spouse.

Additional estate planning techniques can be implemented. Monies can be segregated and placed in an intervivos trust for the benefit of the children, if the parent is so inclined. In addition, life insurance can be purchased for the benefit of the adult children.

If you are interested in more information about estate planning for second marriages, you should contact an experienced estate planning attorney. The attorneys at Weiss, Tom & Trapanese, LLC will assist you in formulating an effective estate plan that addresses your concerns.