Second Marriage Will Issues

Everyone knows that second marriages are complicated when it comes to inheritance issues. Here's how you can ensure the children of your first marriage receive the assets you desire.

-- By K. Gabriel Heiser, Attorney


"I'm concerned that if I died first, and I just left all my assets to John, that he could get remarried or simply decide for whatever reason not to leave my boys anything upon his death." Sarah's heartfelt concern is shared by many individuals who are in a second marriage, where children can be his, hers, and theirs. Taxes are not the issue; protecting one's legacy so that at least some portion of it stays "on your side" is the goal. How can this be achieved while still benefiting the second spouse?


The goal is generally to benefit the surviving spouse while guaranteeing that upon that spouse's death, whatever is left will pass in accordance with the wishes of the first spouse to die. There are a number of ways to do this.


Contract to Make a Will. First, it is possible for both spouses to have wills that leave everything to the surviving spouse but then divide between both sides of the family that cannot be later changed, based on a written contract signed by both spouses. The risk is that the surviving spouse may remarry, get sued, or get divorced. In any of those situations, the will may continue to be unchanged, but the assets may becomed depleted by the time the spouse dies.


Testamentary Trust for the Spouse. A better alternative is to insert a trust within your will, for the surviving spouse (this can also be done within a living trust). The surviving spouse can be the sole beneficiary of this trust, but there will be limits on the distributions, so that the surviving spouse cannot withdraw all the trust assets, defeating the plan. The spouse would generally be entitled to all the trust income plus discretionary distributions of principal for maintenance and support or at least medical emergencies.


Having someone other than the spouse as the trustee---or at least as a co-trustee with the spouse---adds further protection. Upon the spouse's death, the trust divides among your children or however you want it to pass. The main advantages of this approach are as follows:


  • your spouse has no ability to alter your intended distribution of assets following your spouse's death
  • if your spouse remarries your assets are protected against claims of a divorcing new spouse
  • if your spouse remarries the new spouse will not be able to demand a portion of your assets as an "elective share" (see below) upon your spouse's later death
  • creditors of your spouse cannot touch the trust assets during your spouse's lifetime or after death


Elective Share. Any of the above solutions must take into consideration the "elective share" statute of your state. That law guarantees a certain percentage of your estate must pass to your surviving spouse, no matter what your will says. That percentage varies from state to state, but is generally between 1/3 and 1/2, and some states pro rate the percentage depending on how long you've been married. A pre-nuptial or post-nuptial agreement can override this statute, as can a properly worded contract to make a will.


K. Gabriel Heiser is an attorney with over 25 years experience in elder law and estate planning. Heiser is the author of “How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets,” an annually updated practical guide for the layperson. For more information about this book, visit Medicaid Secrets.


New! Comments

Leave a comment about this article in the box below and share it with your Facebook friends.

Have a Medicaid Question or Comment?

We'd love to hear your questions, comments or opinions. Submit them here and other visitors can read them and comment on them. An e-mail address is not required.


The purpose of this feature is to stimulate discussion and share experiences regarding topics of interest. However, please note these submissions are not reviewed for legal accuracy. They may not apply to your situation and should not be considered legal advice. For specific legal advice you must consult with your attorney.



What Other Visitors Have Said

Click below to see contributions from other visitors to this page...

Estate Recovery from Surviving Spouse's Estate -- when there is a second marriage 
Will the state of Mississippi's Medicaid Estate Recovery take the money from the new surviving spouse? Example: Joe is married to Sally. Sally gets …

Click here to write your own.



Medicaid Planning: Life Estate in House | Does the $13,000 Gift Tax Exemption apply to Medicaid? | Medicaid and Community Spouse Assets | Planning For Medicaid Coverage | Effect of Life Insurance Proceeds On Medicaid Eligibility | New Medicaid Annuity Rule Explained | How Can an Irrevocable Trust Be Used in Medicaid Planning? | Selling the House and Medicaid Qualification | How To Qualify For Medicaid If My House Is Worth More Than $500,000? | What is Elder Law? | Living Trust and Medicaid | What Is An Inheritor's Trust? | Should I Take Out a Loan Against My House to Pay For A Nursing Home? | Can I Give My House to My Child and Qualify for Medicaid? | Elder Care Lawyer Fees | Choosing A Nursing Home | Do I Need a Will? | Capacity To Sign a Will, Trust or Power of Attorney | Special Needs Trust Issues | What is a Common Law Marriage? | What is a Medicaid Annuity? | How does a Medicaid Annuity Work? | How To Protect My Home and Still Qualify for Medicaid | Medicaid and Spousal Will Election | Do It Yourself Medicaid Planning | Medicaid Rules and Reverse Mortgages | How Does Life Insurance Policy Ownership Affect Medicaid Eligibility? | Medicaid Estate Recovery Rules | Medicaid Estate Recovery Planning | Limitations on Medicaid Estate Recovery | Do Medicaid Plans Work? | Nursing Home Costs and Payment Options | Don't Be Too Cheap! | What Happens to My Home If I Go On Medicaid? | Can Spouse Receiving Medicaid Pay Income to Community Spouse? | Will Medicaid Exempt My Home If I Leave It? | Tips for Discussing Wills and Powers of Attorney With Your Parents | Elderly Marriage Issues | Durable Power of Attorney Medicaid Considerations |


From Second Marriage Will Issues to Medicaid Questions | Estate Planning Blog | Basics of Estate Planning | Selecting a Financial Planner | Estate Planning and Taxes | Is This Good Time to Buy a House? | Incorporate My Business | Best Low Cost Investment | Fringe Benefit Plans | Estate Planning and Charitable Giving | Health Insurance Comparisons | Best Medicare Supplement Plan | Retirement and Estate Planning | What is a Power of Attorney? | Current Estate Planning News | Estate Planning Forum | Estate Planning Books | Choosing an Estate Planning Attorney | Find a Probate Attorney | Estate Planning Questions |


Return to Home Page

About Us | Contact Us | Site Search | Terms of Use / Privacy Policy


Subscribe to
Estate Planning Hub


Your First Name


Your E-mail Address

We keep this private.



Follow the Estate Planning Blog.




--by Beth Heikkinen
Marquette, Michigan
I just want to thank you for this site. It answered my questions. I think many people that do research on the net take it for granted and when they find what they are looking for they forget "someone put time, money, etc into providing me with this information."

Thank you!


Like This Site





Visit Our Social Media Pages

Become a Fan of Estate Planning Hub on Facebook Follow EstatePlanningHub on Twitter Follow EstatePlanningHub on Google+ Subscribe EstatePlanningHub Video on YouTube

Get a PDF version of this website and its sister site here.