If you have been divorced and are now remarried, you should take great caution in planning your estate and assets in the event of your disability or death. If you also have a child or children from a previous marriage or with someone you never married, these are all special situations that should be examined to avoid future problems. No estate plan is just that – no plan. These situations are ripe for conflict and lawsuits when someone plans poorly or not at all. We call these cases “death wars”. These cases literally drain tens of thousands of dollars out of an individual’s estate with respect to attorneys’ fees and court costs where, with a little expenditure of time and a fraction of the money, the whole war could have been avoided.
The best approach when getting married for a second time, or any time, is to see an attorney well in advance of the wedding date to discuss your situation. This is especially true when one or both of you have children from a previous marriage or relationship.

The following are the 10 most common causes of “death wars”:

1. Spouses lie about the value of assets or when or how the assets were acquired.

2. Spouses conceal a child from a prior relationship or marriage from their current spouse.

3. Couples fail to create pre-nuptial or post-nuptial agreements.

4. Spouses fail to change estate plans that they may have created before meeting their current spouse.

5. Spouses fail to consider that, by default, a spouse is the beneficiary of the other spouse’s qualified retirement plan such as a 401k or 403b account creating a different disposition of these assets other than as intended by the deceased spouse.

6. Failure to plan where spouses have a significant disparity in the age; and the age of one spouse is the same or close to the ages of the other spouse’s children from a previous marriage or relationship.

7. Failure to double-check beneficiary designations on life insurance policies that were in effect before meeting the individual’s current spouse.

8. Failure by spouses to review and address changes in estate plans when there has been a significant change in the health or wealth of the other spouse which may impact their ability to take care of themselves in the event of the death of the other spouse.

9. Failure to give consideration as to how real estate is titled when purchased with a second spouse.

10. Failure to clearly define the ownership and intended disposition of assets without title such as family heirlooms, jewelry, etc.

If you or anyone you know is planning on getting married for a second time or getting married with unique circumstances with respect to age, children from previous relationships or marriages, or any other unique circumstances, please feel free to refer them to us for estate planning review.

Dan A. Penning