Second Marriages and “Live-in Lovers” Require Planning

When you are in a second marriage and you have children from prior marriages, you need to plan to avoid problems. If you have a live in lover, they could claim to be your spouse under South Carolina common law marriage. If you hold yourself out to the public as married, then the surviving partner can claim they were your spouse. As you can see, the problems can be plentiful. It can be a minefield. It is best to be clear on this and plan ahead with the benefit of legal counsel to avoid these kinds of problems.

First, if you leave the spouse nothing, then absent a prenuptial agreement, they will be entitled to claim one third of your estate by making a claim for the elective share. Second, if you leave the spouse everything free of trust, then it is possible, if not likely, that your children from a prior marriage will not inherit anything. Third, if you do not take steps to resolve all of the potential problems, then the likelihood of problems emerging is more likely than not, probably much more likely than not.

However, with some care and with the guidance of an experienced estate planning attorney, you can effectively structure your financial affairs to provide for your spouse and also make sure your kids will not be disinherited. You can earmark some assets to go into trust for your children straight away even of your spouse survives, and then allocate the rest (often including the house) into a trust for the benefit of your spouse during their life, with the remainder to your children. When you leave assets “in trust” to your children, you can make it so they will not lose the money if they get divorced. You can make sure it will stay in the family. When you direct the remainder of your spouse’s trust to your children (or to their trusts), you give your children a future interest that is a legally recognizable interest. It could be called a “vested remainder interest”. Most people in a second marriage or blended family want to avoid problems and ensure that all loved ones are treated in an appropriate way. Fortunately, there are legal tools available for those who plan ahead.

Contributed by: Mark F. Winn, J.D., Master of Laws, LL.M. in Estate Planning, is a local tax, asset protection and estate planning attorney.