Second marriages can be difficult by virtue of the fact that you are bringing two unrelated families together and they may be very different. You may both have kids from prior relationships, and perhaps you even have children together. Most likely, you each have assets that you brought into the relationship. Blended families are even more of a reason to make sure that your estate planning is up-to-date.
What should you consider with blended families and estate planning? First and foremost, if you are going into a second marriage, you should consider signing a prenuptial agreement. Do not assume that, just because you have everything titled in your name and a Last Will and Testament that states everything goes to your children from a prior relationship that this will happen. A prenuptial agreement is one step you can take to insure your wishes are kept. A prenuptial agreement is a contractual agreement that a couple makes before they are married regarding their ownership of their respective assets should the marriage fail or should one of the parties predecease the other.
And please do not think that a prenuptial agreement is only for the rich. I had a client come to me last month whose only asset was a homestead which he wanted to go to his adult children. You may have a bank account or other investment accounts that you want to go to your children, and not your new spouse. In Florida, without a prenuptial agreement (or postnuptial agreement if you sign it after you are married), if my client passed away before his spouse, she would be entitled to elect a 50% interest in the house, or a life estate in the house, regardless of the fact that he had a Will (or even a Trust) that leaves the property to his children.
In Florida, where there is no prenuptial agreement, a surviving spouse who is not included in the decedent’s Will (also known as a pretermitted spouse) is entitled to 50% of the probate assets, or a 30% elective share (which includes probate assets and can also include assets held in a revocable trust, jointly owned property, payable on death accounts, life insurance, etc.), and this is in addition to the homestead rights. A calculation must be made to determine which type of share the surviving spouse should elect to take.
Do not think that your spouse and children will “work it out” if something happens to you – this is not a plan. I promise you that “working it out” will only lead to heartache and attorney’s fees. Find an estate planning attorney who has experience with working with blended families and who can help make sure your wishes are fulfilled.