Protecting Biological Children’s Inheritances When You Remarry

Although many of us would like the traditional fairy tale life, where we get married, have kids, and all live happily ever after as a family, that’s not always what happens.

Often, our “forever” relationship ends up being a second (or third, or more) marriage. And while it is great to find your forever someone at any point in your life, second marriages do create one problem when it comes to estate planning and probate: protecting biological kids that you may have, from a previous marriage.

The Surviving Spouse and Elective Share

Many people go into relationships and marriages, with kids from prior marriages. That leaves them with a problem: they may want both their spouse to inherit, but also, they want to protect their own biological kids from the previous marriage, and make sure they also have something to inherit.

A surviving spouse will get 30% of a deceased’s estate—even if the marriage is short term, and even if you state otherwise in your will. This 30% share includes both assets that are probated, and assets that don’t get probated, like life insurance proceeds, or property left in trusts.

If you have no will, your surviving spouse will get up to half of your property, pursuant to Florida’s intestate laws.

That means that once someone gets remarried, if they have children from a previous marriage, they have to think about an estate planning strategy.

The Workaround to Protect Biological Children

There is a workaround, which would allow your biological children from the previous marriage, to inherit more than what they would otherwise. This will, of course, reduce what your current spouse would inherit, if he or she does survive you.

You can execute a premarital or postnuptial (after marriage) agreement. These are documents we tend to associate with family law of course, but they have a use in estate planning and probate court as well.

In these documents, your spouse can agree to waive her right to his or her elective share upon divorce or death. Other rights that a surviving spouse would otherwise have, such as to the homestead property of the marriage, can also be waived.

You cannot just sign a contract—both of these documents have formalities that must be followed, for them to be valid, including full disclosure of each spouse’s finances and assets.

But probate courts do consider prenuptials and post nuptials to be contracts, and they generally will supersede anything to the contrary in your will, or anything to the contrary written into Florida’s inheritance (intestate) statutes.

If you do execute any of these documents, you don’t have to completely disinherit your new wife or husband. You can be flexible, and leave whatever you want to them, and whatever you want to your biological children.

Blended families can create issues in probate court. Call the West Palm Beach probate lawyers at The Law Offices of Larry E. Bray today for help with your probate law case.

Sources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.201.html

flsenate.gov/Laws/Statutes/2011/0061.079