According to statistics, the divorce rate in the United States in 2020 (excluding California, Hawaii, Indiana, Minnesota, and New Mexico) for every 1,000 people was 2.3. While that is lower than the 4.0 reported for the year 2000, unfortunately, divorce is a fairly common occurrence.
And so is marriage.
And so are second marriages.
Second Marriages and Florida Estate Planning
Second marriages, while joyful events, nevertheless raise a number of important Florida estate planning issues.
Financial Estate Planning Issues
For estate planning purposes, second marriages tend to be more complicated in terms of heirs, assets, and inheritance.
For example, in many second marriages each spouse brings his or her own money and property into the new marriage. If the couple does not have a prenuptial agreement, this blending of incomes can lead to financial complications.
Couples in second marriages must decide whether or not they want to combine their property (non-separate property) during the marriage.
This is important to decide because if one spouse brings significantly more assets into the new marriage than the other, or if one spouse brings in property that makes income over the lifetime of the new marriage, conflicts over marital property can arise.
Also, Florida’s elective share laws can result in the wealthier spouse’s heirs losing a large portion of their inheritance. This is because in Florida, a spouse is entitled to elect whether to take a share —equal to 30% —of the deceased spouse’s elective estate. Jointly owned assets, beneficiary-designated accounts, and trust assets of the deceased spouse all make up a deceased spouse’s elective estate.
If there is not enough in the decedent’s elective estate to make up the surviving spouse’s share, then property can be taken from other direct recipients to make up for the shortage.
Inheritance Issues and Stepchildren
Another common issue that makes estate planning complicated for blended families concerns children from a first marriage (i.e., stepchildren).
Quite often, those with children from their first marriage simply rely on the promise of a new spouse to “take care of” their children after death. While a new spouse might even agree to do so, promises like this often lead to conflicts.
Because there is no guarantee that your new spouse will provide for his/her stepchildren. The sad truth is that in many blended families, the relationship between the stepparent and stepchildren can be tense at best. This uncertainty, along with Florida’s elective share and intestate succession laws, can leave stepchildren unprovided for if you don’t carefully plan out what you want by working with an experienced Plantation, Florida estate and probate attorney.
Here’s what we mean.
Florida’s intestate succession laws, protect a spouse from being disinherited or not provided for by allowing for both Homestead exemptions and a spouse’s elective share. (A discussion of Homesteads is beyond the scope of this brief blog post, so please consult with Samantha J. Fitzgerald, for more information on this issue.) If you do not have a way of transferring assets to your children from a first marriage (such as a living trust), or if you should die without having made a Last Will and Testament (“Will”), your new spouse will receive either 100% of your intestate estate if there are no children, or if decedent and the surviving spouse only have children with each other, or half of the estate (50%) if either spouse has children from a first marriage.
What can happen, then, is this: your children from a first marriage (i.e., your new spouse’s stepchildren) can be inadvertently disinherited. For example, let’s assume you and your new spouse both have adult children from your first marriages, but you have no children together from your second marriage. If you leave all of your assets to your new spouse, and then die, your new spouse will, of course, inherit everything. Now, if your new spouse should later die without leaving a Will, everything—the entire estate she inherited at your death and any other assets— will go to her children, not yours. That means that your children (i.e., her stepchildren) will get nothing.
Like we said, estate planning for blended families can be very complicated.
Protect your family. Contact the Law Offices of Samantha J. Fitzgerald today.
Protecting Your Family is Just a Phone Call Away.
Whether this is your first marriage or your third, estate planning can ensure your loved ones are taken care of. At the Law Offices of Samantha J. Fitzgerald, we expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Contact us here or email us at: [email protected]