Making a will with a second spouse

Wills and second spouses

Till death do us part. That’s commitment.

A natural corollary is, what’s yours becomes mine, and mine, yours.

Often there are stepchildren. We embrace them as our own.

We often make “mirror” wills. If I die first, everything goes to you and vice versa.

We readily agree to add that when the second of us dies, whatever’s left goes to the children. It’s a beautiful thing, and a solid estate plan. That is, until you really think about what happens after one of us dies.

On death, we part. One is dead and the other continues on. Each of us would want the other to be happy. A period of utter devastation is expected but pick yourself up and carry on with as fulfilling a life as is possible.

It is small solace but our combined life savings will help. Maybe the one left behind will be so lucky as to find someone new. Your children, and stepchildren, are protective. The new love interest doesn’t own a home and has no savings. Are you being taken advantage of? But the new love interest’s free spirit is what attracts you. You’ve scrimped and saved your whole life. You’ve now found someone who will help you use that wealth to best enjoy your twilight years. They are so special to you they become your new “life partner.”

Till death do us part. What’s yours becomes theirs. And two families unite.

It’s not so easily with adult children, though. Your new life partner’s children fully embrace you but your children and stepchildren are more reserved. Unfortunate as it might be, expectations might play a part.

You and your first life partner were savers. Your children and stepchildren grew up without extravagances. Over time, they began looking at their parents’ wealth as something that would eventually pass to them. Your new relationship throws that out the window.

Your new life partner is a spender. Their children grew up with all the trips and toys.

Your children and stepchildren are seeing that not only is your estate about to be plundered by new lavish living, but also divided in two because your new estate plan will include your new life partner and their children.

Don’t you hate expectations? Not just their expectations, but the expectations of your first life partner. They expected that their children would benefit from their life’s work and sacrifices.

They’re particularly concerned (to the extent a deceased person can be concerned!) about the child they brought into your relationship: your stepchild.

You embraced them as your own. But a lot of water has passed under the bridge since your first life partner’s passing, and blood is thicker than water.

You redo your will. Like before, you do mirror wills. Everything goes to your life partner. If your life partner dies first, then everything goes to your combined broods. But you leave out your now-estranged stepchild.

Can your stepchild challenge your will? I’ll cover that in detail in another column, but it’s unlikely in these circumstances.

But we’re getting ahead of ourselves. It’s not your will that matters.

You and your new life-partner arrange your financial affairs so everything is jointly owned and passes automatically to the survivor when one dies.

You die first and after a suitable period of mourning, your new life partner changes their will, cutting out your children. Can your children challenge that will? It’s unlikely in those circumstances. The life savings you and your first life-partner scrimped and saved to amass end up in the hands of someone else’s kids and grandkids.

Can you guard against this outcome? Yes, but not with a “simple” will. It’s complicated and I will discuss the mechanisms in my next column.

My columns are never a substitute for a fully informed consultation with a lawyer. If you’ve been cut out of a will in circumstances similar to the story I told, or any other circumstances for that matter, consult with an estate litigation lawyer to find out your rights. I can help you find one.

And, if this column reads like a nightmare you want to avoid, consult with a lawyer for estate planning advice.

My future columns will give you options and ideas, but their careful consideration and implementation require a lawyer’s helping hand.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

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About the Author

Lawyer Paul Hergott began writing as a columnist in January 2007. 

Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety.  It was published weekly for 13½ years until July 2020, when his busy legal practice no longer left time for writing.

Paul was able to pick up writing again in January 2024. After transitioning his practice to estate administration and management.

Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.

You are encouraged to contact Paul directly at [email protected] with legal questions and issues you would like him to write about.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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