Second marriages create special issues for estate planning. In the absence of a prenuptial agreement, the new spouse is entitled to inherit, generally, one-third (1/3) of the estate of the other, regardless of what the spouse’s will dictates. This right is referred to the right of election. It was designed to prevent one spouse from leaving all assets to a friend or lover, thus leaving the widow or widower with nothing, causing financial distress. If one dies without a will and is married, the new spouse is entitled to one-half (1/2) of the estate
Especially if one has children from a prior marriage, it is important to consider entering into a prenuptial agreement, so that the children are not left to inherit a smaller portion of the estate. Of course, a prenuptial agreement will also serve the purpose of protecting one’s assets in the event of a divorce, especially if one goes into a second marriage with substantial assets.