One of the things that couples should consider when doing their estate planning is: What happens to my assets if my surviving spouse remarries? Many people worry that their assets will eventually go to their surviving spouse’s new partner, rather than the kids, and they are right to worry. That is how things end up most of the time. But there are some ways that you can plan to avoid that happening, if this is a concern that you have.

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The default when a married person dies is usually that their spouse inherits everything. This is reflected in our laws on joint ownership, institutional rules of joint ownership, and state law regarding the disposition of individually owned assets. We usually want everything to go to our surviving spouse, because they will need those assets to survive, and we trust that those assets will make it to the kids. In fact, that would be the default if your surviving spouse didn’t remarry. State laws assume that an unmarried/divorced/widowed parent wants their assets to go to their kids.

The trouble presents itself when a surviving spouse remarries. In Oregon, we do have some statutes that divide up separately owned property between the kids and the new spouse if the surviving spouse dies first, but what happens most of the time is that 1) assets between the new spouses become jointly held, which means everything goes to the new spouse of surviving spouse dies; or 2) the new spouses execute a new estate plan where they leave all their assets to one another, trusting the other to leave the estate to the children when they both pass. So, it often works out that the kids are effectively disinherited, usually by accident.

When your surviving spouse dies, their new spouse can change their estate plan to exclude your children. Or they can remarry, and have the same issues your surviving spouse did.

There are things your surviving spouse can do on their own to plan for this. They can execute a prenuptial agreement in which the parties agree not to pursue any rights to the estate. They can set up their own trust plan that benefits their spouse for life or until remarriage, but then passes to the kids.

But if you don’t want to leave it up to your surviving spouse to proactively plan to protect your kids’ inheritance, you can protect it now by setting up a trust plan that becomes irrevocable after you die, benefits your spouse during their lifetime or until they remarry, and then gets distributed to your kids.

If you want to get started on your estate plan, read about our estate planning services and schedule an appointment.

To your family's health + happiness.

~Candice N. Aiston

P.S. Want to get started slowly but surely, naming guardians for your kids? Check out our Guardian Plan kit.

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Candice N. Aiston is an Legal Planning Attorney for Estates + Businesses in the Portland, Oregon area. She helps people to prepare for a lifetime of security, prosperity, and guidance. If you would like to receive her free reports, please visit http://aistonlaw.com/ to sign up. Follow her Facebook page for daily planning tips: https://www.facebook.com/aistonlaw/.