Gerry Turner, the first “Golden Bachelor” and a widower, and his wife, Theresa Nist, a widow, started divorce proceedings just three months after their televised wedding. Their marriage and subsequent divorce emphasize the importance of estate planning in remarriages or domestic partnerships where one or both partners were previously in a committed relationship.
Previous relationships come with legal “baggage”: children, pre- and postnuptial agreements, divorce agreements, business arrangements, unequal wealth between partners, and outdated estate planning documents. These issues and others should be addressed early with new estate plans.
However difficult, the first step is to discuss your plans with family members. The next step is formalizing your plans through your estate plan. The goal is to avoid probate.
Whatever the specific scenario, it is important to consider these eight factors:
- Are the estates of both parties equal? If one person has significantly more wealth than the other, they should consider creating legal documents—such as a prenuptial agreement or an agreement to keep their estates separate—before drafting an estate plan. This approach helps ensure the estate plan reflects their wishes for both their new spouse or partner and anyone else they care about.
- Whose name is on the deed to the house? It’s easy to decide that you will live in one person’s house or the other’s. You may base that decision on factors such as location, mortgage payments, and/or school district. But if you are in a domestic partnership, you also have to specify what will happen in case of death if the surviving partner’s name is not on the deed. You do not want to leave your partner without a place to live.
- Who inherits specific assets? The new estate plan should indicate who inherits items such as heirlooms, artwork, and jewelry. Specific wishes should not simply be voiced but set out in writing.
- Do you both have powers of attorney? POAs are very important documents that give the person you name legal authority to act on your behalf, making decisions for you if you become incapacitated. Depending on state law, you each may need two separate POAs, one for financial decisions and another for medical, including end-of-life decisions. You should consult state law when drawing these documents.
- You also need to decide who will have guardianship of minor children. Consider all possible scenarios involving children from a previous relationship and formalize your plan in your estate documents. You and your partner should consider who will have guardianship of children — your new partner or your former spouse — should you die or become incapacitated. If you were previously married, the divorce decree may govern some decisions.
- You must also decide who will have guardianship of any disabled or special needs children. As with children from previous relationships, you need to plan for their future care. Consider what type of trust will protect the child’s income, who will serve as a trustee, and who will take on guardianship responsibilities.
- Will beneficiary designations change as a result of your new relationship? Retirement plan (401(k)s, individual retirement accounts, Roth IRAs, etc.) beneficiary designations generally take priority over estate planning documents. Be sure to update the beneficiaries in all such accounts so that the proceeds are handled according to your wishes. Similarly, you may wish to update beneficiary information for financial assets such as bank accounts, brokerage accounts, and insurance policies. You must also address business assets.
- How will you handle federal and state taxes? Taxation rules are different for married and unmarried couples at both the federal and state levels. You should also consider capital gains, gift, and income taxes.
It is important to remember that new relationships do not change old ones. If you bring your own home, assets, collectables, traditions, children, and grandchildren into a new relationship, creating a new estate plan can become complicated. You must balance the needs and expectations of your new spouse or partner with the needs and expectations of the people who have been in your life for years.
You also need to weigh these emotional considerations against complex financial rules and regulations that may limit your options if you want to minimize potential tax liability. Consulting a tax professional who can guide you in making the best decisions for you is part of the prudent course of action.
When you are ready to put a new estate plan in place, contact our office to see if we can help.
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