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Second marriages

People are living longer today. Many are remarrying to fully enjoy the second half of their lives. This being said, many estate problems can occur when no estate planning is completed prior to or after the marriage.

This will be a two part series. The purpose of these articles is not to give all of the solutions but to alert you to the potential unintended consequences after the death of one of the spouses of a second marriage. You may even disinherit your children without knowing that it could happen. 

There are several second marriage categories

1.Each spouse has children.
2.Each spouse has children and they have a natural child between them.
3.One spouse has children and the other spouse has none.
4.Neither spouse has children. 

Each of these situations requires special planning to insure that the right beneficiaries receive the correct family property. Most couples take it for granted that their children or family will receive their property upon their death or after the death of the second spouse.

PRENUPTIAL AGREEMENT-SEE THE LAWYER BEFORE THE MINISTER. 

A prenuptial agreement can often save the children of each family a lot of grief. First of all, it is contract that has to be entered into before the marriage ceremony. Its validity depends on full disclosure. Each party should have an attorney to advise and verify the contents of the agreement. Using one attorney can easily void the contract if it is challenged in court. 

It is imperative that each person disclose in detail all of their assets. If this is not done, then the survivor can possibly prove that the assets of the deceased were not disclosed and break the agreement. This is most often initiated by the children of the surviving spouse. They discover what the deceased spouse owned and that it could belong to their parent and eventually to themselves. It is important to understand that a prenuptial agreement will do nothing to protect the assets of a spouse if the other person enters a nursing home.  

NO WRITTEN AGREEMENT.

Most couples had a handshake and a kiss and promised to see that the other’s children would get everything that belongs to them. They are probably telling the truth but they have no idea of the results that can occur without planning. 

ESTATE PLANNING.

Detailed estate planning is imperative for a second marriage. It is also one the most difficult planning areas. The attorney’s job is to look at all of the worst case scenarios and plan accordingly. We must take the emotion out of the equation and see that each person’s assets get to the intended beneficiary. A trust is often the best tool to insure completion of the couple’s desires. Having the couple plan will prevent potential feuding among the survivors. Without proper documents, your children may not even be involved in your end of life decisions. Moving to another state can have adverse consequences in the ultimate distribution plan. There are many other potential problems that can be prevented by honest informed planning and continued thought as new assets are acquired. The next article will focus on problems with the improper titling of assets between spouses. 

Jeff Roth is a partner with David Bacon and associate Jessica Moon of the firm ROTH and BACON with offices in Port Clinton, Upper Sandusky, Marion, Ohio and Fort Myers, Florida.  All members of the firm are licensed in Ohio and Florida.  Mr. Roth’s practice is limited to wealth strategy planning and elder law in both states.  Nothing in this article is intended for, nor should be relied upon as individual legal advice. The purpose of this article is to provide information to the public on concepts of law as they pertain to estate and business planning. Jeff Roth can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. (telephone: 419-732-9994) copyright Jeffrey P. Roth 2014.

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What happens now?

When a person dies, one of the first questions to arise is “where does everything go?” Here is a quick overview of how assets pass at death.

By Law 

Ohio statutes allow assets to be titled in such a way as to permit automatic transfer upon death with the presentation of a death certificate. Examples are:

1. Tenancy by entirety, Joint Tenancy with right of survivorship (WROS), any co-ownership with survivorship provisions. 

2. The persons inheriting are the named survivors on the accounts.

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The Gift of Knowledge

It is approaching the New Year. The best gift you can give for the holidays and the New Year is the gift of knowledge of your personal information. 

I have all of my financial affairs in order.

That is fine but does anyone else know these facts other than you?  Does your spouse know of every bank you utilize and what type of accounts are in these banks? Do you know if there is a lockbox, and if so, do you know where the key is stored?  This may sound trivial but upon a serious illness or death it can be crucial that your spouse or child be in position to continue to keep the home front running.

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