Second Marriages and What You Need to do With Your Estate Plan

A lot of people entering into a second marriage in Florida have not taken the time to properly update or change their estate plans. Not only that, but many in second marriages aren’t sure what their new relationship will mean for questions of inheritances, incapacity, and other essential estate planning topics. Today we are going to take a look at why you need to revisit several key estate planning topics if you are getting married for the second time in Florida.

Second Marriages and Spousal Inheritances

Anyone who is married for a second, or subsequent time immediately gains, and gives, automatic spousal inheritance rights. Should you or your spouse die, the surviving spouse is automatically entitled to inherit at least a portion of the deceased spouse’s estate. While spouses can voluntarily waive this spousal inheritance right, it is not a right the other spouse can ignore. In other words, you cannot disinherit a spouse.

Note that the spousal inheritance right only applies to people who are currently married. A former spouse has no spousal inheritance right, as the right divests upon the couple’s divorce.

Second Marriages and Children

Like spouses, your biological or adopted children are entitled to receive a portion of your estate. Unlike spouses, you can effectively disinherit your children if you create an estate plan that does not leave them an inheritance.

Under Florida’s intestate succession laws, your children will inherit a portion of your estate should you die without an estate plan. Should you create an estate plan, you can choose to leave your children whatever inheritances you choose.

Second Marriages and Stepchildren

Unlike children, stepchildren are not automatically entitled to receive an inheritance from you. Should you enter into a second marriage where your spouse has children, and assuming your spouse is not the biological or adoptive parent of your children, those children are not entitled to receive a portion of your estate upon your death. Similarly, your children are not entitled to receive a portion of your new spouse’s estate upon your spouse’s death.

Second Marriages and Incapacitation

In addition to spousal inheritance rights, newly married couples also gain rights when their spouse becomes incapacitated. In the event one spouse is mentally incapacitated and cannot make decision on his or her own, the spouse typically has the right to make decisions on the incapacitated spouse’s behalf. Assuming a court has not named a guardian or representative for the incapacitated person, it typically falls to the spouse to make decisions for the incapacitated spouse.

However, if the incapacitated spouse has made an advance medical directive and has named a health care proxy or agent under a health care power of attorney, the named proxy will have the right to make decisions on his or her behalf.