Wills and second marriages?

Between us we have four grown children (his) and three school aged children (mind). In case of death everything of mine goes to him, and everything of his to me.

We have a trust that owns all our assets. Half of everything goes to a C trust which the surviving spouse gets to enjoy until they die but then is passed on to the children per our instructions. The other half goes to the surviving spouse and at this point it is willed to the children as well but the surviving spouse has the power to change that. (But not the C trust. )

I like the idea of half going to the spouse and half going to the children, if they’re adult. I think if the children are under the age of majority or still in college, they should get it all, as the surviving adult can make a living for themselves but the child still needs to be supported.

I am not married so this, thankfully, does not pertain to me. As a single parent of a young hchild, if I were married, I would not want to depend on the generosity of a spouse to handle my assets and use them appropriately to take care of my daughter, should I become deceased. Yes, it would be wonderful to totally trust someone, but I have seen many situations (starting with my own family) where after someone dies, all relationships, ties and allegiances dissolve and people get snarky and evil and cutthroat.

I have a good friend whose dad was remarried since my friend was a teen, and the wife was so obviously bad news (stole from the dad, etc.). The dad never changed his will to include his adult children, and when he passed away the wife got it all and the kids got zero.

This really is a question that is dependent on your life situation right now. Half to spouse, and half to children, with the remainder of your estate passing to the children after your spouse dies,is about as fair as you can make it. But is your estate large ebough for your spouse to live on the half? If not, you need to provide as best you can.

It is important to talk to your children now. Make sure everyone knows how and why the will has been written. I hope your children support the care for your spouse.

I should add that my children are all grown and on their own. Although my husband is legally a “step” parent he’s the only father they have and they are the only children he has.

If I die first, apart from the funds from a smallish insurance policy which goes to my children, everything goes to my second husband with my preference that in the event of his death, that portion of his estate goes to my children. He doesn’t have children. However, I can’t compel him to do this in my will (or not in the country I live in). He knows it’s my wish that he does this but if I died and he remarried and chose not to do this, there’s nothing I can do.

At this time, in the event of his death before mine, everything goes to me. If we both die, everything goes to my children. As far as they’re concerned, he is their dad. He’s been their ‘dad’ for a long time.

You need to get clear advice on the situation where you are. I would err on the side of fairness to all the children, regardless of whether they are from first or second marriages. Whatever you do, make sure your wishes are as clear as possible. Even then people can challenge your will.

Do not trust your spouse or her children to give money to your biological children, it must be written down in black and white in your will. It sounds like maybe the trust @Judi talks about takes care of it, but I know very very little about estate and probate law. If your wife can have use of the money and then what is left a certain portion goes to your children upon her death, that sounds good to me. Although, I would make sure some of your money goes directly to your kids upon your death, like what you mentioned, being beneficiaries to insurance or specific accounts you might have.

If you die and everything goes to her, and then she dies, then everything goes to her kids, unless her will at the time of her death specifies her money goes to your kids. Changing your wills today has nothing to do with what her will might say at the time of her death. It is up to you to protect your children, and up to her to protect hers. A friend of my mom inherited land and money when her mother died, the two children from her fathers first marriage got nothing. He was close to his children always, the siblings and half sibling were together often while growing up and got along. His two children from the first marriage took her to court to get part of the land, one of his children actually was living on the land, and the court found in my mom’s friends favor, she got to keep everything, but the half sibling was allowed to continue living on the property. My mother thought she was a piece of crap for not sharing it with her siblings.

My grandmother was screwed in a similar fashion, although she was not the child, she was the SO.

I say, if someone has good intent, then they don’t mind the intent being in writing. My assumption is you and your wife will want to protect your children, all four of them.

@JLeslie, that’s what we sought to do but we were advised if one of us died, the person who was left the money could really do what they liked from that point. You can suggest what you want to happen but not compel the beneficiary to follow your wishes. I don’t know what the law says in the US. I think a trust would be a good idea if it provides surety.

@Bellatrix Exactly the same here. Once someone is given the money; it’s theirs. I don’t know how the trusts work, maybe @Judi can clarify.

The C trust is created when one person dies. Half of our property goes to the C trust. If I die first and the trustees (my husband and accountant in our case) decide that half the value of the trust is our two homes then my husband would get to use them until he dies and at that time they would go to our children.
He COULD sell them and buy an apartment building. (Or any other asset) He would still manage the assets and get any dividend from it. He just couldn’t disinherit the children. He could even manage it poorly. I think he does have some responsibility as a trustee. No guarantee of anything, but its better than him remarrying and deciding to leave everything to his new wife, which he COULD do with the other half of the assets.
I’m not an attorney and I’m just saying how I understand OUR trust to work. It’s complicated stuff that’s why guys like Mitt Romney don’t pay much in taxes because they know how to take advantage of this stuff much better than I do.

Not that I don’t trust my husband but I think that’s a great solution for us @Judi. I’ve been talking about investigating a trust for a while so I think I’ll definitely look at this more closely. If I died first and my husband remarried, it could be hard for him to follow my wishes if it put him into conflict with his new wife. He’s a good man but if he was under pressure, who knows!

Hope this is helping you @Qipaogirl.

I just realized the OP is a woman, I don’t know why I thought man, especially looking more closely at her username.

Hello and thank you all for your kind and well reasoned replies. Like @SuperMouse I do tend to agree that fully taking care of the surviving spouse is terribly important as they will have the burden of potentially surviving without the benefit of a second income or social security, and they will also be older and without as many opportunities as the children. For some reason this notion seems to be deemed cruel in second marriages when in first marriages it is deemed perfectly acceptable to leave all to the surviving spouse. @Judi I very much like your C trust idea which gives the survivor spouse unfettered use of the funds, but requires that all that remains be divided evenly between all children biological or otherwise. If I may ask was there a reason for placing only half of your estate in this sort of trust? @zenvelo I appreciate your sagacity, and agree that the spouse needs to be able to survive. @JLeslie we both have required by our respective divorce settlement agreements that our children would share half any insurance policies, which are generous, so neither set of offspring would be able to be cut out utterly in any manner. So, it seems that perhaps where I now stand, given all of your wise advice is with the notion of insurance policies which would give immediate benefit to children, and then, a trust permitting surviving spouse use of entire estate, and when the second spouse passed away, all children would receive the balance in equal measures. It seems that this would care for all without disenfranchising or imperiling anyone. Now to see what my spouse thinks! Thank you all as always, you are a tremendous resource!

The senior relatives in my family made a prenuptial agreement when they got married in their 60s. I am not sure of the details but each of them specifically mentioned their own children (who were in their 30s and 40s) Assets made before the wedding would be divided among the children and assets acquired after the wedding would be willed to the surviving spouse.

@keobooks thanks for weighing in! Do you know if these elder relatives each had enough post marital funds to support themselves in absence of the other spouse? My concern is that were we to follow such a rule, there would be tremendous financial hardship for the survivor.

@Qipaogirl – Yes they were both well off before they were married and could both well afford to be single. That does make a big difference to the situation.

@Qipaogirl That sounds good. I agree your spouse is the primary concern. I think when it gets icky is when the children get a different percentage because of who died first. Different than if you both had died simultaneously. Depending on the family the percentages might not be completely equal among all kids. If one spouse came into the second marriage with much more property or money, then their children might inherit more than the children of the other spouse, and that might seem fair. To some people it might not seem fair.

Hi @JLeslie thanks again for your thoughts! Of the two of us, I am the more financially fortunate, but it does not concern me that the money would ultimately be equally shared. My husband gave notion to the idea of wanting his portion of the estate divided in equal thirds immediately, and I am not so financially fortunate that that would not financially handicap me. I think he very much feels that if he does not immediately give to his children exactly what he gives to me that they will feel less loved. Sadly, I disagree as that was what he planned to do with their mother. Given the notion of the C trust and the insurance I had hoped that would place fears of disenfranchised children to rest, but it has not. Given the proclivity of wives living longer, it seems that the chances of me being the surviving spouse are increased, so concerned I am! Perhaps speaking with an attorney will help, but clearly this won’t be easy! Again much gratitude!

@JLeslie sorry I did not answer the question, I envisioned equal shares for all children with each receiving 25 percent. That means my children would probably get a bit less, but not so much less that there would seem need to make an issue. Regardless all four would have half of their respective parent’s life insurance policy. That’s really the true safe money as who knows how much would remain in the marital estate particularly with health costs etc.

@Qipaogirl As a generalization I would not expect children and a spouse to get equal shares; I agree with you. But, people can do it however they want of course, and each stuation is different. When I mentioned equal percentages I only was referring to among the children, but I think from your answer you understood what I meant.

Is it possible his children already have said something to him about you getting the inheritance?

@JLeslie Yes, people are entitled to do as they see fit, but I it does sadden me that my first thought is that he will need the money most, and his thought is, “I want to be fair.” The way I see it is that our children will have the benefit of insurance, the support or inheritance of their other birth parent, and will also be at an age where they have viable work years ahead. Not so much the same case for us. I do not think that the children have said anything. At this point in their lives they are more concerned about the typical teenage things. I think, it is more my spouse feeling this sense of disloyalty if he’s not immediately fair. Hopefully, an attorney can weigh in, and help. Thank you again for exchanging thoughts with me!

Oh, they are just teenagers. I can see why he might be more inclined to give them more than if they were already 30 years old. Are you both fairly young also? Been married long? If you are newly married, maybe in your 40’s, I think after some years you both might adjust your thinking again and redo the wills.

Also, just going back to the spouse getting everything in a first marriage and not in a second, it is not the same with a second marriage. The first marriage both adults are also both the parents of the children. If all the money goes to the surviving spouse, then when that spouse dies all the money goes to the children. In a second marriage if all the money goes to the surviving spouse, then when she dies all the money goes to that surviving spouse’s heirs. At least that is the law without wills saying differently. Even my parents have money going to us kids when one of them dies, not all to the spouse, and they have always been married to each other, and we kids are their kids. So, even people on first marriages where all the children are born inside of that marriage don’t always give everything to the spouse.

We had five children, two of mine and three of his. He and I had always discussed and negociated money matters; we established mine, his and ours. There were no accounts in the Caymans, no mysterious strangers or legacies for the cats. Out of our money came a generous yearly budget for all joint expenses.

When we did our wills, since there were no secrets, our first priority was to establish that the remaining partner could retain his/her present life style, including the house.

We factored in his and my earning power, our ages and possible expectations from our parents.

Then, since my then-husband had significantly higher earning power than I, we took out a large term insurance policy on him. If he kicked the bucket, I would have be fine with my then-present profession.

Then we were free to choose how to distribute the rest of our assets. We both chose to leave them to our kids.

We had a summer house that we owned jointly. We both signed separate agreements that after the death of either of us, all the children would still legally inherit 1/5 of the summer house.

That covered every contingency;

his early death, my early death, remarriage to a Svengali, remaining spouse being sucked in by a cult or Scientology,

@gailcalled That’s interesting. Kind of the opposite of what I said. Makes sense.

Quick I think you spelled negotiated incorrectly, maybe you can fix it. I know you care about those things.

@JLeslie And @gailcalled thank you both for the replies! My concern is the main one expressed by @gailcalled. When money is shared to live if you no longer have the person’e income, be it mine or his, and the estate is carved up right off the bat there is a huge deficit that the remaining adult needs to cover. We have life insurance, so deceased spouse’s children would receive half of that upfront. It seems right to me that the surviving spouse have use of remaining estate during their lifetime, in trust. Upon the second spouses passing all would pass to all children equally.

@JLeslie we are late 40s and late 50s in age, so not so young either of us. I see no problem with all that remains going to the surviving spouse if it is done so in a trust that can only benefit all four children equally.

I loathe having to think about all of this! Again, thank you both!!!!!