Older couple consulting with estate lawyer

Second Marriage and Estate Planning

Gregory, L. Williams, Jr., Esq., Partner. July 19, 2023

While a second marriage is a happy occasion, dealing with the resulting changes to your estate plan may be complicated. However, there are ways you can navigate the process efficiently and effectively. 

Allow an estate planning attorney to be your guide. If you have recently remarried in Ohio and need to change your estate plan, reach out to me—Gregory L. Williams— in Columbus. As a family-oriented attorney, I will work toward the goal of ensuring your family’s security and peace of mind. 

To help you get started, I’ve compiled some important information about estate planning in a second marriage. 

Rights of a Surviving Spouse 

Under Ohio law, if you die without a will in place (otherwise known as dying ‘intestate’), your surviving spouse inherits all of your assets if neither you nor your spouse had children or if all children are yours jointly. If the children have different parents, inheritance becomes more complicated.

For example, if you had more than one child with another partner and your spouse is not their legal parent, your spouse receives $20,000 of the estate plus one-third of the balance. But if your spouse shares parenthood of one or more of your children, your spouse will receive $60,000 of the estate plus one-third of the balance. (In all cases, the remaining assets are split among your legal children.) 

As you can see, Ohio law can be thorny when it comes to spousal inheritance (and the children’s inheritance). Hiring an estate planning attorney can ensure that you divide your assets according to your own wishes, and not according to Ohio state law or a probate court judge’s decision. 

What to Consider When Creating an Estate Plan in a Second Marriage 

Prenuptial Agreement 

A prenuptial agreement can settle questions of alimony and property division and protect each spouse’s individual assets in case of divorce—but it can also be used to protect the right of inheritance for children born outside this new marriage. For example, if one of your children or your spouse’s children from a previous relationship is going to inherit assets (a family heirloom, a house, etc.), you can specify the continuing right of that child to inherit the property in case of death or divorce. 

Inheritance of the Children 

As outlined above, Ohio state law divides the leftover assets after the spouse’s share equally between your legal children. You might want to divide your assets among your children differently. For example, stepchildren don’t inherit under Ohio state law; if you will be gaining stepchildren, you might want to include them in the will. If you and your new spouse have or plan to have children, you can make provisions for them in your will. And if you and/or your spouse have minor children, you will want to appoint a trusted executor to ensure that the children receive their inheritance when they come of age. 

Trusts to Protect Assets 

Creating trusts is another way to ensure children receive their intended assets. For example, one child or stepchild might have a gambling problem, so you can set up a “spendthrift trust” for them that doles out their inheritance slowly. One child or stepchild might be disabled, so you might want to set up a Special Needs Trust for them.  

A trust can also be used to fund long-term care should you become incapacitated. You can also set up trusts that beneficiaries can access should you become incapacitated and unable to make decisions. Trusts do not require probate, so this can be useful in making sure your family can receive assets quickly. 

Considering Beneficiaries 

You’ll want to check your important accounts (bank accounts, life insurance policies, 401(k)s, etc.) to make sure that they are designated to the correct beneficiary. This is usually a spouse, plus your children as secondary beneficiaries; if you are remarrying, you most likely do not want your ex to remain a beneficiary. Avoiding probate is another benefit of naming a beneficiary for these assets. 

Power of Attorney 

You’ll want to draw up a healthcare power of attorney to make sure that the right people will make health decisions for you should you become incapacitated. You’ll most likely want your new spouse to make major health or end-of-life decisions on your behalf. As stated by the Ohio Bar Association, you can also use a healthcare power of attorney to nominate a guardian for you, a minor child, or an adult disabled child. 

Common Mistakes to Avoid 

One common mistake people make after their second marriage is waiting until it is too late to amend their estate plan. Another common mistake is failing to hire an attorney to help ensure that their estate plan is airtight—especially if they have large or complicated estates. Failing to do this might lead to lengthy court battles between heirs, or chosen beneficiaries failing to receive their intended inheritance. 

Plan for Your Loved Ones Today 

If you are getting remarried in Ohio, contact a lawyer to help you plan for the future. I serve individuals and families in Columbus and Central Ohio as they create or amend their estate plans to reflect their new realities. Reach out today for a consultation.