Does Your Estate Plan Protect the Children From Your First Marriage?

Does Your Estate Plan Pro…

Everyone who gets married hopes their marriage will last forever. Of course, we all know that doesn’t always happen. Often, for those who are lucky enough to fall in love again, things go better the second time around. But people may enter a second marriage with things they didn’t have when starting the first: children and more assets. While both of these things are a blessing, they can also complicate estate planning.

If you have children from a first marriage, or from a relationship before your marriage, you probably want to provide for them after your eventual death. If you have a new spouse, you naturally want to provide for him or her, too. You may have thought about creating a new estate plan with the interests of your family in mind. If so, you should know how Florida law affects your plans, and what special measures you should take to ensure that your wishes are carried out.

Florida Estate Planning Issues for Blended Families

Florida law provides for a surviving spouse to take from the estate of a deceased spouse, but may not provide adequate protections for the deceased person’s surviving adult children. It is possible to have a scenario like the following unfold:

Andrew and Barbara marry and have two children, Cindy and David. After some years, Andrew and Barbara divorce, and after Cindy and David are adults, Andrew gets remarried to Elizabeth, a widow with an adult daughter, Frances.

After his divorce, Andrew changed his will to leave everything equally to Cindy and David. He and Elizabeth plan to update their estate plans when they get back from their honeymoon. But one week into the trip, Andrew gets a hole-in-one while golfing, and suffers a fatal heart attack from the shock. Worn down by grief, Elizabeth herself suffers a heart attack and dies a year later.

Who gets Andrew’s estate? Based on the existing estate plan, you might guess that Cindy and David do. After all, they are the sole beneficiaries of the will, and Andrew and Elizabeth were married for only a few days. Cindy and David will get part of the estate, but in this scenario, Frances could end up with a significant portion of Andrew's assets.

How is that fair? Simply put, it’s not, but it’s a predictable outcome of Florida’s law protecting surviving spouses. These laws include:

  • Elective Share: This entitles a surviving spouse to up to 30% of the deceased spouse’s elective estate, which includes net probate assets and non-probate assets such as certain trusts, jointly-owned property, and more. The elective share prevents one spouse from disinheriting another, or leaving the survivor only a nominal amount.
  • Intestate Share: This entitles the surviving spouse of a person who died without a will to receive half of the deceased person’s probate assets if the deceased also had adult children who were not children of the surviving spouse. Assets held in trust are not included in the intestate share.
  • Pretermitted Spouse Share: The spouse of a person who made a will prior to the marriage, then died after the marriage without making a new will, is entitled to an intestate share of the estate (see above) unless the deceased took certain measures to prevent this outcome.
  • Exempt Property: A surviving spouse is entitled to receive up to $20,000 in exempt personal property from the estate of a deceased spouse, as well as up to two of the deceased spouse’s motor vehicles.
  • Homestead Allowance: If the deceased owned a primary residence (homestead), the surviving spouse can choose to take either a life estate in the homestead (use of the homestead for the remainder of his or her life) or a one-half interest in the homestead.
  • Family Allowance: A surviving spouse may petition for an allowance paid from probate assets during the administration of the estate, which may be as much as $18,000 paid in installments or in a lump sum.

Protecting Your Children and New Spouse in Your Estate Plan

So what is a caring parent and spouse to do? Obviously, the scenario above is a little extreme, but the problem of a surviving second spouse’s children ending up with the assets intended for the deceased spouse’s children is common. Fortunately, with a little foresight and planning, you can protect everyone you love, and prevent tension between your children and your new spouse over your estate. But there are pitfalls to avoid as well.

Some people try to do an end-run around Florida law protecting spouses by titling assets jointly with their children, or gifting them outright. While these options may indeed keep the assets out of the hands of a surviving second spouse, they have other dangers.

Let’s say Andrew had a bank account with $150,000 in savings that he titled jointly with David so that David would become sole owner immediately upon Andrew’s death. David, as a joint owner of the account, could clean out every penny, even during Andrew’s lifetime. If David divorced, his spouse might be able to claim assets in the account as marital property, and if David had creditors, they could attach assets from the account if they got a judgment against him in court. What’s more, even if all the money stayed in the account until Andrew’s death, it might still be subject to elective share law, frustrating Andrew’s intent.

DIY estate planning is risky! A far better move is to consult with an experienced Florida estate planning attorney and explain your needs and concerns. Your attorney can explain the options available to you under Florida law, help you achieve what you have in mind, and prevent any unintended consequences.

At Harrison Estate Law, P.A., our experienced estate and probate team can help you identify estate planning goals for your family, review your options for protecting both your children and your spouse, and customize an estate plan that meets your unique needs. Preserve your family’s assets and your family harmony. Contact us online or call 352-559-9828 to get help today.

Categories: Estate Planning
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