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Kevin O'Flaherty

In this article, we explain how to update your estate plan when you remarry.  We answer the questions “what is an estate plan?”, “who needs an estate plan?”, and “what changes should I make to my estate plan when I remarry?”.

What is an Estate Plan?

An estate plan is the designation of who will receive assets, what they will receive, and when will they will receive those assets, in the event of your death.  From real estate and bank accounts to furniture and personal belongings, your estate plan is comprised of all of your possessions.  However, a good estate plan should include more than just the allocation of your belongings.  Common topics in an estate plan include:

  • Prenuptial agreements;
  • A will and/or living trust;
  • Instructions for passing along your values (such as education, religion, work, etc.);
  • The naming of a guardian and inheritance manager for minor children;
  • Provisions for family members with special needs without disrupting government benefits;
  • Instructions for your care, should you become disabled before you die;
  • Insurance policies such as life insurance, disability insurance, and/or long-term care insurance to provide for your loved ones, as well as the beneficiaries of these policies; and
  • Provisions for the transfer of businesses you own in the event of retirement, disability or death.

For more, check out our article: Illinois Estate Planning Explained.

Who Needs an Estate Plan?

Estate planning is for everyone, not just retirees and the wealthy.  Young families and single adults can also benefit from estate planning.  Even if you and your future spouse have a prenuptial agreement, will and/or living trust, you should consult with an attorney to create an estate plan that is tailored to the state laws where you reside, especially if you have children or this is your second or more marriage.  

Contracts such as prenups and wills can only cover specific topics, or may still be subject to probate law in the event of your death.  Estate planning can help you maintain control over who will be making decisions for you or your loved ones when you are not able to do so yourself.  If you were to become disabled or die before legally documenting your intentions for your property, your assets would be distributed according to the probate laws of your state.

What Changes Should I Make to My Estate Plan When I Remarry?

It is important to consider everyone’s interests while estate planning with your future spouse.  If you’ve made an estate plan in the past, you should continuously review and update your documents to ensure that it contains the most current and accurate information possible.  Here are some changes to consider when updating your estate plan:

  1. Update your will.  Your ex-spouse may still be listed as a recipient of the majority of your property, or you may have had a child since the last time you changed your will.  Make sure that the names of everyone you want to include and what they are entitled to are up-to-date.  For more information about wills, see our article: Illinois Wills Explained.
  2. Consider a trust, especially if you have children.  If you have children from a previous marriage, your ex-spouse is likely to become their guardian when you pass away.  If they are minors and your assets are intended to pass to them according to a will, your ex-spouse will gain control of those assets after you pass.  A trust prevents this from happening and can ensure that someone you trust is in charge of managing the assets for your children’s benefit until they reach an age at which they can responsibly manage the assets themselves. For more: Estate Planning After a Divorce.
  3. Execute a prenuptial or postnuptial agreement with your new spouse.  If you were to pass away after you remarry your assets will go to your new spouse, and your children from your previous marriage may not ultimately get the assets you intended for them. A prenuptial agreement can ensure that both parties’ children are provided for regardless of which spouse passes first.  For more: Prenuptial Agreements for Second Marriages
  4. Update your beneficiaries.  Assets such as retirement funds and life insurance policies can go to the beneficiary listed on the policy, regardless of the recipient named on your will.  Be sure to make adjustments as your life circumstances change, or your ex-spouse may receive benefits, as opposed to your current spouse or children.
  5. Check your titles.  This is another scenario in which the recipient listed in your will may not take precedent over the name(s) on the original document.  Assets titled as joint tenancy with rights of survivorship will automatically pass to the surviving person on the title.  You will need to have the title itself changed to make a valid alteration.
  6. Revise your health care directives and power of attorney.  You want the right person to be entitled to make decisions for you and your children.  The person you list as agent on the power of attorney should also list who they want as guardian of your children.  Otherwise, a new spouse or other family might successfully petition the court for guardianship.
  7. Account for personal property.  When it comes down to possessions in your home, the surviving spouse usually gets most of the items.  If you have family heirlooms or other objects of sentimental value that you would like to leave to a specific family member, you need to specify that in your will.
Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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