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What if you are on a second marriage to someone you wouldn't want to leave money too? You both have kids from a prior marriage. Can you have separate wills?
Isn't this very common? I can't remember all the horror stories I read where a person remarries but accumulated quite a bit of assets beforehand and also has adult kids from another marriage. Person dies and everything goes to the new spouse who was only married a year or less. Now a different family altogether is enjoying the benefits of the hard work of the deceased. I cringe at these stories.
There are trusts that can restrict access to the money to certain amounts but in most if not all states spouses are protected from being totally cut out .. it can get complex though as far as what is and isn’t marital assets
i received a reputation point from someone here with a comment that the spouse was only entitled to 1/3 of the estate if it went to probate ...
that is not correct :
"
Under the New York law, a surviving spouse can collect the greater of either 1/3 of the decedent’s net estate or $50,000. Not only does this apply to property that is passed under the will, but also will substitutes such as jointly owned property, bank accounts, payable on death accounts, assets held in a living trust, assets that have beneficiary designations (except for life insurance) and gifts made by the decedent within one year of death. The law makes it clear that attempting to leave your spouse destitute after you die is against public policy and gives great leeway to a spouse who takes the election."
In the case of a second marriage, wouldn't the two parties draw up a pre-nuptial agreement so that there would be no question of the disposition of the separate assets? How does not having a will overrule that?
In the case of a second marriage, wouldn't the two parties draw up a pre-nuptial agreement so that there would be no question of the disposition of the separate assets? How does not having a will overrule that?
a prenup can work if the court supports it . lets face it , you can have a prenup and both of you are healthy and have thriving careers .. then the spouse who is shut off from the assets via the prenup ends up not being able to work from some disease if say her husband died . that prenup may not be up held cutting her off from any meaningful inheritance . the prenup usually applies to non marital assets .
being a second marriage we both had our own assets entering the marriage ,so in case of divorce we wanted a prenup . but ruling out divorce everything goes to each other via our wills
but prenups are not airtight and situations can have courts throwing them out .
a prenup can work if the court supports it . lets face it , you can have a prenup and both of you are healthy and have thriving careers .. then the spouse who is shut off from the assets via the prenup ends up not being able to work from some disease if say her husband died . that prenup may not be up held cutting her off from any meaningful inheritance . the prenup usually applies to non marital assets .
being a second marriage we both had our own assets entering the marriage ,so in case of divorce we wanted a prenup . but ruling out divorce everything goes to each other via our wills
but prenups are not airtight and situations can have courts throwing them out .
OK, thanks.
My last landlord was in a somewhat different position. He was divorced but good friends with his ex-wife. They had no children, and he planned to leave everything to her, but he died of a heart attack at 62 before he made a will. He had a good-sized piece of property in a NJ beach town with a two-family house plus a smaller cottage behind the main house, as well as a number of classic cars he was restoring.
His siblings descended like vultures and fought over everything, and of course the ex to whom he'd intended to leave everything got nothing.
in 2nd marriages a lot has to be built on trust when you both have kids ..
my dad remarried and when he died his wife basically redid her will and left everything to her kids ....
so my sister and i were basically out ...
my wife and i did not want to get involved with restrictive trusts nor pulling the rug out from each other by passing assets to our kids and forcing a new life on the surviving spouse ...
so we trust each other 100% to do the right thing and not re-write each others kids out of the inheritance . while either one of us could , we swore to each other we would always do the right thing .
i received a reputation point from someone here with a comment that the spouse was only entitled to 1/3 of the estate if it went to probate ...
that is not correct :
"Under the New York law, a surviving spouse can collect the greater of either 1/3 of the decedent’s net estate or $50,000. Not only does this apply to property that is passed under the will, but also will substitutes such as jointly owned property, bank accounts, payable on death accounts, assets held in a living trust, assets that have beneficiary designations (except for life insurance) and gifts made by the decedent within one year of death. The law makes it clear that attempting to leave your spouse destitute after you die is against public policy and gives great leeway to a spouse who takes the election."
A family member had personal experience of a related situation in 2001.
In the case of a spouse dying intestate (without a will) the law in NY is that the surviving spouse is entitled to the first $50,000 (the Spousal Election) of the net estate AND an equal share of the remaining estate that is divided amongst the natural heirs. Thus if there is only one other heir the surviving spouse gets $50,000 plus 50% of the remainder; if there are two other heirs, the spouse gets $50,000 plus 1/3 of the remainder; if three other heirs, the spouse gets $50,000 plus 25% of the remainder and so forth.
The linked article specifically uses the word "disinherit" which means that a will WAS made but it specifically excluded the spouse. The presence of a will makes the difference between the either/or ($50K or 1/3) cited in the link and what I have described above. "Going to probate" often means that there was never a will in the first place (which is what happened to my relative.) The other situation is "contesting a will" which is also handled by the Surrogate's (probate) Court in NY.
How about you, for those that have changed their will over the years, what prompted it? Death of a survivor? Someone angered you?
I amended my will twice after originally making it. The first one was the standard boilerplate with everything going to son and if he predeceases or the common-accident thing happened, then in equal shares per stirpes to any children he might have, yadda yadda blah blah. At that time he was only 19.
During his early 20s he was involved with a manipulative little gold-digger who had two kids and I had serious concerns that if they ended up married she'd talk him into adopting the kids which would then bring them into the estate situation. So I changed my will to specify it applied only to any biological children he might have. (The gold-digger was 12 years older than my son and so I figured the odds of her wanting to have another baby were pretty slim, lol)
Thankfully they eventually broke up and he ended up marrying a very nice gal who happens to have been adopted. Realizing that the wording of my will would be regarded as insensitive, I had it changed back to what it was originally. At the same time I eliminated two charities from the 'backup' situation because news reports had uncovered shady dealings by them although when I originally made the will none of that was known.
We wrote one relative completely out. The changes are when we make purchases or sales of assets or sell/make investments.
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