In the United States, 60% of couples in a second or subsequent marriage have at least one child from a prior relationship. In 2008 one-third of people divorcing were actually re-divorcing (divorcing again).
In blended families, it is important to make sure the children from your first marriage are not unintentionally disinherited. To make sure your intentions are met, second marriage inheritance issues should be addressed before or immediately after your marriage.
Are you entering a second marriage or already a second wife wondering about your legal entitlements? The complex web of inheritance rights, property division, and financial considerations can be overwhelming I’ve researched extensively to bring clarity to this often confusing topic
Second marriages create unique legal situations, especially when there are children from previous relationships or significant assets involved Understanding your rights is crucial for protecting yourself and ensuring fair treatment
Inheritance Rights for a Second Wife
When it comes to inheritance, a second wife’s entitlements vary significantly based on state laws, marriage duration, and estate planning documents.
Spousal Allowance and Elective Share
In many states, surviving spouses have important rights that protect them regardless of what’s in a will:
- Spousal Allowance: In North Carolina, for example, a surviving spouse can generally claim the first $60,000 of a probate estate (previously $30,000).
- Elective Share: Most states have laws that allow a surviving spouse to claim a minimum portion of the deceased spouse’s estate, even if the will left them less or nothing at all.
The elective share amount often depends on the length of the marriage. In North Carolina, this is structured as:
| Marriage Duration | Elective Share Percentage |
|---|---|
| Less than 5 years | 15% |
| 5-10 years | 25% |
| 10-15 years | 33% |
| 15+ years | 50% |
These rights can be waived through valid prenuptial or postnuptial agreements, but without such documents, these protections remain in place.
Calculating the Surviving Spouse’s Share
Courts look at two primary factors when determining what a surviving spouse receives:
-
Total Net Assets: This includes all assets owned by the deceased at death, property in revocable trusts, death benefits, and retirement accounts.
-
Net Property Passing to the Surviving Spouse: This covers property received outright or in trust, spousal allowance, and assets from life insurance or retirement plans.
Community Property vs. Separate Property States
In California (a community property state), a second wife is entitled to half of all assets acquired during the marriage, but not those acquired before marriage or through inheritance/gifts.
The famous case involving the creator of Hooters demonstrates the power of elective share statutes. Despite Mr. Brooks leaving his second wife Tami $1 million annually for twenty years, she successfully claimed one-third of his entire estate under elective share laws.
What a Second Wife is Entitled to in Divorce
Divorce presents different considerations for second marriages. Let’s examine what a second wife might be entitled to when a second marriage ends.
Marital Property Division
Property division follows either:
- Community property principles (equal division of assets acquired during marriage)
- Equitable distribution principles (fair but not necessarily equal division)
A prenuptial agreement can significantly impact these standard divisions. Without a prenup, courts typically consider:
- Length of the marriage
- Each spouse’s financial contributions
- Non-monetary contributions (homemaking, child-rearing)
- Financial needs and earning capacities
Spousal Support (Alimony)
For a second wife seeking alimony, courts typically evaluate:
- Marriage duration (longer marriages typically result in more substantial support)
- Standard of living established during the marriage
- Age and health of both parties
- Income disparities between spouses
- Career sacrifices made during the marriage
In some cases, courts award rehabilitative alimony to help the dependent spouse become self-sufficient through education or training.
Child Support Considerations
If there are children from the second marriage, support calculations will consider:
- Both parents’ incomes
- Number of children
- Custody arrangements
The situation becomes more complex when both spouses have children from previous relationships. Courts must balance financial responsibilities across all dependent children.
Protecting Assets in Second Marriages
With the high rate of divorce in second marriages, protecting assets becomes crucial. Here are key tools for securing your financial future:
Prenuptial and Postnuptial Agreements
These legal documents can specify how assets will be divided in case of divorce or death, potentially overriding default state laws. They’re especially important for:
- Protecting funds for children from previous marriages
- Clarifying inheritance intentions
- Preventing disputes over separate property
Trusts as Asset Protection Tools
Trusts offer powerful protection in second marriages. By creating a trust for your surviving spouse, you can ensure they’re provided for while guaranteeing that remaining assets eventually pass to your intended beneficiaries (often children from a first marriage).
Joint Ownership Strategies
Joint ownership with survivorship rights allows property to automatically pass to the surviving owner without going through probate. This can be beneficial in some cases but may complicate efforts to ensure assets eventually reach children from a previous marriage.
Insurance and Retirement Considerations
Life Insurance Beneficiaries
Life insurance policies become important in second marriages. Without proper planning, conflicts can arise between a second wife and children from previous relationships.
Some key points:
- Employer-provided plans under ERISA often require the spouse to be the default beneficiary unless they waive this right
- Some states automatically revoke a former spouse’s beneficiary status after divorce
- Insurance can be used strategically to provide for a second wife while preserving other assets for children
Retirement Asset Entitlements
Retirement assets accumulated during a second marriage are typically considered marital property subject to division. Important considerations include:
- A Qualified Domestic Relations Order (QDRO) may be needed to divide accounts without penalties
- Contributions made before the second marriage are usually separate property
- Prenuptial agreements can specify how retirement assets will be handled
Common Questions About Second Wife Entitlements
What happens if you have a second marriage?
In a second marriage, you may feel torn between providing for your current spouse and children from a previous relationship. Without proper planning, your spouse may inherit assets you intended for your children, especially if relationships between stepfamily members are strained.
Can a second spouse claim an IRA?
Your IRA will go to whoever is named on the beneficiary form, which might exclude your new spouse if not updated. However, in many states, your second spouse can claim a portion of assets covered by your will even if it specifies otherwise.
Do I need life insurance if I have a second marriage?
Life insurance is particularly important in second marriages. It provides financial security for your surviving spouse while potentially allowing other assets to pass to children from a previous marriage.
Legal Planning for Second Marriages
I strongly recommend consulting with an attorney who specializes in estate planning for blended families. Here’s why this is so important:
- State laws regarding marital property and inheritance vary significantly
- The interaction between wills, trusts, beneficiary designations, and marital property rights is complex
- Professional guidance can help you navigate competing interests and obligations
For example, it’s crucial to update beneficiary designations on retirement accounts, life insurance policies, and other assets after entering a second marriage to reflect your current wishes.
Conclusion
The entitlements of a second wife vary widely depending on state laws, the length of the marriage, and whether legal documents like prenuptial agreements are in place. Without proper planning, conflicting interests between a second wife and children from previous relationships can lead to lengthy disputes and unintended outcomes.
By understanding these rights and working with qualified legal professionals, you can create a plan that provides for your spouse while protecting assets for other beneficiaries. Don’t leave these important matters to chance – take control of your estate plan today.
Have you experienced challenges in a second marriage regarding inheritance or financial planning? We’d love to hear your experiences in the comments below!
Houses Owned Prior to Marriage
If you owned a home prior to your second marriage and your spouse is going to move in, consider whether or not you want that home to eventually go to your children. If you add your spouse to the title, they will inherit the home upon your death and your children get nothing. The title of the home supersedes anything you put in your will.
One consideration is to keep the home in your name only but set up a trust that allows your spouse to reside in the home until their death. When your spouse dies the home will pass to your children.
Medical Power of Attorney
Should something happen to you, who do you want to be able to make medical decisions on your behalf, your children or your spouse? Make sure both your spouse and adult children know your intentions and the appropriate documents have been completed.