Safeguarding your children’s inheritance when you remarry

The Facts: I will be getting married soon. It is a second marriage for both me and Mary. We both have children from our prior marriage.

Question: Is there something can have Mary sign to insure that my assets will pass to my children when I die?

The Answer: If you are only worried about what happens to your assets when you die, you can ask Mary to sign a waiver of her right of election. As long as you have kept your assets separate from Mary’s as opposed to co-mingling your assets in joint accounts or investing your assets in jointly held property, a waiver should be adequate.

Under the law, regardless of how assets are held or the wishes memorialized in a Will, trust or beneficiary designation form, a surviving spouse is entitled to 1/3 of his/her deceased spouse’s assets. This entitlement is known as the surviving spouse’s right of election. The types of assets that are subject to the right of election are set forth in Estates, Powers and Trusts Law Article 5. Pursuant to Article 5, a surviving spouse’s elective share may include assets owned by the decedent individually but, also assets that the decedent owned jointly with others and assets held in retirement and pension plans, to name a few.

A surviving spouse must exercise his/her right of election within six months of the issuance by the Surrogate’s court of letters testamentary or letters of administration. Although spouses who voluntarily agree to live apart can still exercise their right of election, a spouse who is found to have “abandoned” a decedent is barred from claiming an elective share.

In order for Mary to waive her right of election, she must sign a document that states that she waives her right of election and all claims against your estate. The waiver must be signed by Mary in the presence of a notary. Of course, if, after Mary signs a waiver, you choose to leave assets to Mary in your Will, you can certainly do so. The waiver does not prevent Mary from being a beneficiary of your estate. It simply prevents her from demanding more than you may voluntarily allocate to her.

It is important to note that a waiver only addresses Mary’s rights to your assets after your death. If you are concerned about what may happen to assets in the event of a divorce, you should discuss with an experienced attorney your options in terms of a pre- or post-nuptial agreement.

This article first appeared the Times Beacon Newspapers in December, 2019.

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, marital planning, real estate, small business services and litigation from her East Setauket office.