The Challenge of Wills for Second Marriages


Divorced parents remarrying is perfectly normal and quite common. So you would think preparing a will would be straightforward, right? No, definitely not.

I have had more than a few conversations with people wanting to get their affairs in order and wanting to do a simple will. “Oh, I just want to leave everything to my spouse and then if my spouse dies I want it all to go to my kids”. This is perfect and definitely the way to go if the kids are both spouses’ children. Each parent has an equal moral and legal obligation so if they pass away, the kids’ interests are protected in this type of will.

In a second marriage situation, a parent is torn between leaving enough behind for their spouse’s ongoing needs and a wish to leave a legacy for their children. If the children are young there would also be a need to give them support until they are adults.

This is why it would be wrong to leave everything to your spouse if your kids are not also their kids. Discussions I have had with people are along the lines of “oh, Joe loves my kids as much as I do, I know he would look after them.” Um, well, he might be that way now, but what about if you aren’t there? There is nothing like money to get a family squabbling. Plus, after you’re gone, Joe’s relationship with your kids might be great for a few years but then as Joe gets on with his life they might drift.  Any gentle suggestions I make that perhaps Joe’s relationship with your kids might not stay as strong over time do not go over well, and mentioning that perhaps in a few years’ time Joe might wish to remarry and would place a priority to his new spouse rather than your kids also don’t make me popular.

Which is to say that by doing a will leaving everything to Joe in hopes that he will provide for your kids is downright negligent. That plan all might make perfect sense now, but over time he might not feel the same way about making sure your kids get the rest of estate you left to him. Or, he might live a very long time and spend it all, so there is nothing left for your kids.

This then leads to the challenge that a lot of us don’t have huge assets to make sure that our spouse is looked after and that there is also enough left for our kids. The whole estate might be enough for both if they live together, but to leave half the estate to a spouse and the other half to the kids might mean that the spouse is forced to sell the family home and move out, and might have a tough time supporting themselves.

Also, if a house is owned as joint tenants with the right of survivorship, then the surviving spouse gets the house, and the kids wouldn’t have a right to any of it. The surviving spouse would probably also get pension entitlements, and any joint bank accounts, which also means that there wouldn’t be a lot there for the kids if they were to get half the assets in the will.

There are no easy answers to this. Sometimes this can be addressed through the use of life insurance and trusts to make sure that everyone is looked after, but this takes time and careful planning – but is far better than just going ahead with a simple will.

See also my previous post about what happens if you die without a will.

Disclaimer: This is not meant to constitute legal advice. I highly recommend speaking to a legal professional about your specific circumstances.


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