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Estate Planning in Second-Marriage Situations Can Be Tricky

Arizona attorney Robert Fleming discusses the scenarios of 2nd + marriages in estate planning.

We frequently see clients in second (or even third or fourth) marriages, with children from prior relationships. When we discuss how their assets should be distributed, they can usually give us a quick summary. Their plans vary, but they often fit into one of these models:

  • Maybe the couple have kept their assets mostly separate, and on the first death they expect that the deceased spouse's assets will pass to his or her children.
  • Sometimes they couple have commingled assets, and they intend to leave everything to the surviving spouse - with no restriction on how the survivor will handle the funds after the first death.
  • Perhaps the couple has commingled some assets and kept others separate, and they want the surviving spouse to have fairly free access to the combined assets during the rest of his or her life - with everything to go to some combination of both sets of children on the second death.
  • Once in a while (especially in long-term second marriages) the couple intends to leave the surviving spouse with almost unlimited access to all funds - but each wants to constrain the other to leave all remaining assets to both sets of children on the second death.

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