Remarrying can bring renewed happiness, but it also introduces estate planning challenges that are very different from those faced during a first marriage. By the time you remarry, you may have accumulated significant assets, own a home, operate a business, or have children and grandchildren from a previous relationship whom you want to protect. At the same time, you likely want to provide financial security for your new spouse if you die first. Accomplishing all these objectives requires thoughtful and comprehensive estate planning. Failing to revise your estate plan after remarriage could put assets intended for your children or grandchildren at risk. Fortunately, a carefully structured New Hampshire estate plan allows you to provide for your spouse while preserving your legacy and protecting the inheritance you intend to leave future generations. To help get you started, the attorneys at Legacy Care Law Firm explain remarriage and asset protection in your New Hampshire estate plan.
Why Remarriage Should Trigger an Estate Plan Review
One of the most common estate planning mistakes following remarriage is assuming that an existing estate plan will continue to accomplish your goals. Remarriage, however, changes both your family relationships and your financial circumstances.
After getting remarried, you may both have children from previous relationships. Moreover, you may have separate property acquired before the marriage as well as jointly owned assets and new financial obligations to your current spouse. Importantly, you also likely have retirement accounts and life insurance policies with outdated beneficiary designations.
Typically, estate planning documents prepared during a previous marriage will no longer reflect your current wishes and even documents prepared after a divorce may fail to address the unique issues presented by a blended family. Reviewing your plan promptly after remarriage allows you to identify potential problems before they affect your loved ones.
Balancing Two Important Priorities
Most individuals entering a second marriage share two primary goals. First, you want your current spouse to remain financially secure if you die before he or she does. Second, you want to preserve assets for your own children and grandchildren. Although these goals can be compatible, they can also create a conflict if your estate plan is not carefully drafted. For example, leaving your entire estate outright to your surviving spouse may provide immediate financial security. Once those assets become your spouse’s property, though, you lose all legal control over what ultimately happens to them and your spouse could remarry, spend the inheritance, or experience financial setbacks that diminish the assets left to him/her. Even when your spouse intends to honor your wishes, circumstances can change over time. A comprehensive estate plan addresses these possibilities by creating legally enforceable protections instead of relying solely upon informal promises.
Why Reciprocal Estate Plans May No Longer Work
During your previous marriage, you and your former spouse may have created reciprocal estate plans wherein each spouse leaves everything to the other with the understanding that, after the surviving spouse’s death, the remaining assets will pass to their children. While such an arrangement often functions well when both spouses share the same children, blended families create a different situation.
Using reciprocal estate plans, your surviving spouse inherits your estate outright, meaning there is no legal obligation to preserve those assets for your children unless your estate plan specifically requires it. If you have children from a previous relationship, this can be problematic. Even if your spouse intends to follow your wishes, future events such as remarriage, declining health, creditor claims, or changing financial circumstances may dramatically alter the eventual distribution of those assets. For that reason, remarriage frequently requires moving beyond traditional reciprocal Wills toward more sophisticated planning strategies.
Understanding Separate and Marital Property
Remarriage also requires you to evaluate how your assets are owned because property acquired before marriage requires different considerations than assets accumulated after the marriage. Although New Hampshire does not follow community property rules, property division during divorce and questions concerning ownership after death can still become complicated when separate and jointly owned assets have been commingled over many years. Working with an experienced estate planning attorney allows you to evaluate ownership structures that support your long-term planning goals while reducing the potential for future disputes.
Should You Consider a Prenuptial or Postnuptial Agreement?
Although prenuptial agreements were once a point of contention for many couples, they are now used frequently by couples entering into marriage for the first time or taking the plunge a second or subsequent time. A carefully prepared prenuptial agreement allows you and your future spouse to discuss financial expectations openly before marriage while both parties are making decisions voluntarily. Although people frequently associate prenuptial agreements with divorce, the terms of such an agreement can also apply upon the death of one spouse, making these agreements particularly beneficial for couples remarrying later in life. Common financial issues addressed in a prenuptial agreement include:
- Ownership of premarital assets.
- Responsibility for existing debts.
- Rights to appreciation in separate property.
- Business ownership interests.
- Future inheritances.
- Rights upon death or divorce.
If you are already married, a postnuptial agreement may accomplish many of the same objectives.
How a QTIP Trust Can Protect Both Your Spouse and Your Children
One of the most effective estate planning tools for many blended families is a Qualified Terminable Interest Property (QTIP) trust. A QTIP trust allows you to provide financial support for your surviving spouse during his or her lifetime while preserving the trust principal for beneficiaries you select, often your children from a prior marriage.
After your death, designated assets are transferred into the trust instead of passing directly to your spouse. The Trustee manages those assets according to the terms of the trust. Your spouse generally receives the income generated by the trust and, depending upon the language you include, may also receive limited distributions of principal for health, maintenance, or support.
Because your spouse does not own the trust assets outright, those assets generally remain protected from being redirected through a future estate plan or subsequent remarriage. When your surviving spouse later dies, the remaining trust property passes directly to the beneficiaries you selected.
Consider a Family Wealth Trust for Additional Asset Protection
While a QTIP trust is an excellent option for many blended families, it is not the only trust that may help protect your assets following remarriage. A Family Wealth Trust can provide another layer of protection by preserving assets for future generations while allowing your surviving spouse to benefit from those assets under carefully defined terms.
Rather than transferring property outright, the trust owns the assets. Depending on how the trust is structured, your spouse may receive income generated by trust assets, occupy the family residence, or receive discretionary distributions for specific purposes. At the same time, ownership of the trust assets remains separate from your spouse’s personal estate.
This distinction can be particularly important if your surviving spouse later remarries. Because the assets remain in the trust instead of becoming your spouse’s individual property, they are generally better protected from becoming part of a subsequent marriage or being redirected to unintended beneficiaries.
A Family Wealth Trust can also provide protection against creditor claims, lawsuits, and financial mismanagement while ensuring that your children or grandchildren ultimately receive the inheritance you intended them to have.
Review Beneficiary Designations After Remarriage
In the average estate plan, many valuable assets transfer through beneficiary designations rather than through probate. Retirement accounts, Individual Retirement Accounts (IRAs), life insurance policies, and payable-on-death bank accounts all include beneficiary designations that control who receives the asset regardless of what your Will says. After remarriage, reviewing every beneficiary designation should become a priority.
Do You Have Questions about Remarriage and Asset Protection in New Hampshire?
For more information, please join us for an upcoming FREE seminar. If you have questions or concerns about remarriage and asset protection within your New Hampshire estate plan, contact our estate planning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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