Second Marriages and Relationships

I’m In a Second Marriage. Is Estate Planning Really That Important?

Simple answer: it’s probably MORE important now in your second marriage than it was in your first.

In most second marriages, each spouse comes into the new relationship with “baggage” from the first marriage (and I don’t mean “baggage” in the negative sense). They have kids from the first marriage. They have a house from the first marriage. They have a 401k from the first marriage. Maybe they have a business that survived the first marriage.

Other than the “kids,” these pieces of “baggage” are all “assets” in the eyes of the law from the first marriage.

Now, usually there’s a pretty interesting dynamic that I see surrounding how each spouse feels about these different pieces of “baggage” from the first marriage. Generally, they tend to think of the property, or “baggage,” from the first marriage as their own individual property.

It’s not necessarily a negative or selfish feeling that they have about these assets – it is understandable – but they tend to have the view that they worked hard for them, they survived the break up of a first marriage and came out with them in tact, so they view them as “mine.”

Added to this dynamic each spouse then usually has very strong feelings about how these pieces of “baggage” should be handled when they pass away.

Here’s a great “real life” example from a second-marriage couple I recently met. They’ve been married for over 10 years. They both have adult kids from a first marriage. The couple is living together in the home that the wife brought from the first marriage.

Now, they live in this house, which has no mortgage, as if it is “their” home. They act as if it is “their” home. They both contribute to its upkeep. They pay taxes on it. But, if something happens to her, then the wife wants her husband to live in the house for as long as he wants (and for as long as he remains single after she’s gone), and then the house should go to her kids from the first marriage only. She doesn’t want the house to go to her stepchildren.

So here’s the rub: if that wife dies without some sort of estate plan in place, then state laws will determine how that house is passed on. So, the surviving husband will now have part ownership in that house with her kids from the first marriage. If that surviving husband then dies without a will, his kids will inherit his share of the property – a result that the wife didn’t want.

For this couple, like most couples in a second marriage, a living trust could solve their dilemma and help get them the result that they want.


Andrew J Garcia, Family Legal Planning attorney

Our Family Legal Planning system is the perfect match for couples who are in a second marriage. As you can see, the worst thing that a couple in a second relationship can do is ignore their estate planning needs. For a complimentary Family Legal Planning session with Andrew Garcia to discuss your second marriage planning needs, just call (508) 998-0800 or email him at [email protected]



Wills & Trusts - the Basics , , , ,

What is Probate?

Massachusetts Family Legal Planning Attorney, Andrew J. Garcia

I am asked this question frequently. “Probate” is the court-supervised process of collecting and then distributing a deceased person’s assets (their personal property such as bank accounts and mutual funds, and their real estate).

It usually includes some of the following:

  • proving in court that the deceased person’s Will is valid (if they had a Will);
  • identifying and then preparing an inventory of the deceased person’s real and personal property;
  • paying the debts and taxes of the deceased; and,
  • distributing the property according to the terms of the Will, or if there is no will then according to state law.

Probate involves paperwork and usually court appearances by attorneys (although lawyers aren’t required). Court filing fees and attorney’s fees are paid from the property of the estate.

If the deceased person left a Will, an executor will have been named. The executor is the person named to identify and collect all of the assets of the deceased person and to see that the terms of the Will are carried out.

Probate generally involves two things: time and money.   Between court costs, filing fees, and attorney’s fees, probate can be expensive. It can also take months or even years to wind through the Probate Court.

Probate is also a public forum. This means that anyone can look at the files which contain information about the property of the estate and its value. They can also learn the identities of the heirs.

For all of these reasons, probate is a process that many people want to avoid. And, it can usually be avoided by using a living trust.

To learn more about the probate process or living trusts, contact Family Legal Planning Attorney, Andrew Garcia of Phillips & Garcia at [email protected] or call him at (508) 998-0800.