Second marriages cause probate storms

The attorneys in our firm always tailor an individual’s or couple’s estate plan to avoid probate as well as other unpleasant realities such as unnecessary taxes or nursing home expenses. 

Probate is avoided after many people pass away because of the way in which their assets were titled. Perhaps the assets were titled jointly with a surviving joint owner, or perhaps assets such as life insurance policies or individual retirement accounts had designated beneficiaries who were alive when the owner passed away.

However, there are many instances when someone’s estate is at least partially subject to probate court. Perhaps it is because a bank account or a piece of real estate that does not have the name of an heir on it, perhaps it is because of a blank beneficiary designation on a particular asset, or perhaps it is because a designated beneficiary has passed away.  

While all of those can create probate court cases, the perfect storm for probate is when there is a second marriage involved and one person, usually the husband, has died. Those involved in the perfect storm are the surviving spouse and children from the first marriage 
While not all people in second marriages are predestined to have their family and their affairs subject to probate court, given what we have seen, a failure to properly understand the legal issues related to death or disability can result in significant acrimony between the surviving new spouse and the children of the first spouse. 

Let me be clear: Everyone should be certain that their estate plan properly reflects their wishes in the event of death or disability. However, if you are in a second marriage, it would seem that there would be heightened urgency in making sure that your death or disability is not a triggering event for a tragedy for the rest of the family.

What is the moral of the column? That’s easy: Get yourself some good advice before it is too late.


Paul A. Brule is an attorney with the firm of Walsh, Brule & Nault, P.C. in Cumberland. He can be reached at (401) 334-4545.