What is Fair in a Second Marriage and Estate Planning?

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If you are considering or already in a second marriage, you may wonder what is fair when planning your estate. There are many factors to consider when thinking about how to prepare. The idea in estate planning is to care for yourself and your family while still living and think about how to distribute your assets once you pass away.

This type of planning is particular to each situation. An estate planning attorney can help you think through your specific issues. Until you can get to your attorney to plan, consider these ideas.

Differences in Children

If you have three children by a spouse of 5 years who receives child support and alimony from you, your situation may be quite different from someone who has no children by a first spouse but was married for 17 years to their first spouse.

Parents generally want to plan for children’s well-being after they are gone. If you have children from a previous marriage but your spouse has no children, you may need to address this issue together to decide what is fair. If you both have children, you can often understand each other’s perspectives about children better.

If you are not married to your second spouse yet, now is the time to start thinking about these questions. Discuss these issues to decide what is best in your family situation. It is perfectly valid to want to care for your children from a first spouse. Still, if there are issues with a second spouse understanding this, you’ll need to discuss this with a family counselor or attorney to come to a compromise that works for you and your children.

Sometimes a spouse needs to know that you care for them as much as you do children from a first marriage. Find out what your spouse needs to feel secure in your relationship, your affections, and to know you have a plan to take care of them in the future.

Disparate Incomes

Your estate planning may also be different if you are the one with more wealth in a second marriage. When one spouse makes considerably more than the other, a different kind of planning is necessary than if spouses make equitable incomes. The spouse who earns more may have a retirement account already. The first spouse may already own half of this account from a divorce court order.

To feel taken care of equally, the second spouse who does not make as much may need to inherit other assets than the first spouse if you should suddenly pass. 

Your second spouse may desire more equity in your real estate or savings account to feel secure. You can always pass on items after death through joint accounts with the right to survivorship or by owning real estate as tenants in entirety.

Disparate Age in the Marriage

If you are nearing retirement age and collecting retirement or social security benefits while your spouse is quite a bit younger, you may have older kids and a set of younger kids. You may be more financially secure than a younger spouse. 

Look at what each child receives through child support, gifts, education, medical payments, gifts, etc. Then, consider what you have planned for them after you pass away. 

Do the same for your spouses. Whatever seems fair to you and your current spouse is likely your best plan. An estate planning attorney can help you set this all up without worrying about forgetting someone or something. 

Keeping your will up to date along with the names of beneficiaries on retirement accounts, joint accounts, and real estate is critical here. Also, if you have any trusts, update your trustee. Update and ensure you don’t name your ex-spouse or late spouse in any power of attorney documents.

Social Security

If your spouse has not been married to you for more than nine months, they cannot receive survivor’s benefits if you die.  According to AARP,

“a widow or widower qualifies for survivor benefits if he or she is at least 60 and had been married to the deceased for at least nine months at the time of death.”

AARP lists a few exceptions:

  • Suppose the late beneficiary’s death was accidental or occurred in the line of U.S. military duty. When this is the case, there’s no length-of-marriage requirement.
  • You can apply for survivor benefits as early as age 50 if you are disabled (and the disability occurred within seven years of your spouse’s death).
  • You can apply at any age if you care for children from the marriage under 16 or disabled.

If you remarry before you turn 60 (50 if you are disabled), you cannot draw survivor benefits. You regain eligibility if that marriage ends. If you remarry at or past 60 (50 if disabled), there is no effect on eligibility. (1)

Retirement Accounts

Take a look at the types of income you are receiving now. Who do you want to receive those benefits when you die? If you have retirement accounts, update your beneficiaries to the correct names. 

Your will may state that someone receives an inheritance at your death. However, if it is a retirement account, the beneficiary’s name on the account takes precedence. Let’s say your oldest son by your first marriage is the heir of your retirement account in your will. However, being named in the will does not mean that he inherits the account. If your first wife is the retirement account’s beneficiary, she will receive the account at the time of your death. Your oldest son will receive nothing because he was not the beneficiary named on the account.

Think Through the Possibilities

As in a marriage, with estate planning, think about how you provide for each person in your life. Children who are grown may need less than small children when it comes to what you leave behind. Consider your needs and the needs of your loved ones. If you have small children, make sure you have a guardianship plan in place in addition to inheritance plans. 

As long as you try to see from each person’s point of view when you make an estate plan, you can leave your loved ones a legacy of love and concern for others.

Consult Your Attorney

Whether your first marriage was short or long, or you had kids or didn’t, planning your estate in a second marriage can be a challenge. It is complex to prepare for the future of yourself and your loved ones. Consulting an experienced estate planning attorney can help you see all of the angles before deciding how to make your estate plan for the future.


  1. https://www.aarp.org/retirement/social-security/questions-answers/social-security-spouse-dies.html