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Planning on getting remarried? You’re not alone.

Consider: In 2013, four in 10 new marriages included at least one partner who had been married before, and two in 10 new marriages were between people who had both previously stepped down the aisle, according to a Pew Research Center study released in 2014. Read Four-in-Ten Couples are Saying “I Do,” Again.

Unfortunately, most people who get remarried have no clue about the legal and estate-planning issues that come with a new marriage, according to a new article by Jeff Scroggin, an attorney with Scroggin & Company in Roswell, Ga. Read Skip Navigation LinksEstate Planning Implications of Remarriage. They do little planning, and ultimately that just increases the conflict and chaos that often occurs down the road ... when death us do part, according to Scroggin.

“Most people do not understand that marriage automatically gives significant rights to the new spouse and have never heard of spousal elective shares or homestead rights or contemplated the impact of their remarriage when they pass away,” says Scroggin.

For example, Scroggin says some of the rights that a spouse automatically gains upon marriage may include (depending on the state): , though state laws, vary, including:

  • A right to be the guardian for the other spouse
  • The right to be the personal representative of a deceased spouse
  • A right to an “elective share” percentage of the other spouse’s estate — generally ranging from 30% to 50% of the estate
  • A right to a homestead dollar amount or the ownership or use of the house
  • A right to personal property of the deceased spouse, including heirloom assets
  • An automatic right to be a beneficiary of the deceased spouse’s ERISA accounts
  • A right to be supported under state filial support laws


Others also know why people getting remarried do little planning. “The reality is consumers just don’t like dealing with personal legal planning, whether it is a prenuptial agreement, estate plan or anything else,” said Martin Shenkman, an attorney in Paramus, N.J., and co-author of The Tools & Techniques of Estate Planning. “I think the displeasure of the process, and secondly the cost, is what detracts most people from doing what they should.”

So, if you plan on getting remarried, or already have, here’s what you should do.

Consult an expert. “Rules vary widely from state to state, and People considering a remarriage should meet with competent counsel to understand what their rights are and how to limit those rights and powers,” says Scroggin.

Get a prenuptial. Folks getting remarried should get a prenuptial. “Yes, it can be advisable, particularly if they have a home or business they want to pass to their descendants from a prior relationship, or the intent is that each spouse will retain the right to pass on their personal investments and property to their respective descendants,” says Scroggin. “Merely having an understanding or oral agreement is not a legally binding obligation — properly signed waivers are critical — and the waivers need to strictly comply with the requirements of state and federal law.”

A prenuptial is worth getting even if you’re not rich. “Some might feel that their assets are not worth bothering, but they may be,” says Shenkman. “The savings in angst, legal fees and so forth ... if there is a reasonable and valid prenuptial can be a huge benefit at almost any wealth level.”

Once married, If a new spouse dies absent a prenuptial agreement, the surviving spouse will get to inherit what state law permits, called a spousal right of election. “So the mere fact that the deceased spouse leaves assets to children from a prior marriage won’t suffice without a waiver of the spousal right of election, which is often done in conjunction with a prenuptial agreement,” says Shenkman.


Get your fair share. There are at least two ways that a surviving spouse can get an intestate share of a deceased spouse’s estate, according to Scroggin.

  • If a married person dies without a will, then the surviving spouse is entitled to a share of the estate, generally limited to the intestate estate. If the decedent leaves no descendants, then the surviving spouse will normally receive 100% of the intestate estate. In some states, the surviving spouse receives at least a minimum dollar amount or minimum percentage of the intestate estate even if there are surviving descendants or surviving parents.
  • And two, in most states, if the decedent’s will existed before a marriage and was not made in contemplation of the marriage, the new spouse is entitled to an intestate share of the estate.

Robert Powell is editor of Retirement Weekly, contributes regularly to USA TODAY, The Wall Street Journal and MarketWatch. Got questions about money? Email Bob at


Those darn kids. It’s not uncommon that a parent’s marriage to a man or woman 20 years their junior has created “heartburn for many children who have been anticipating a larger and quicker inheritance,” says Scoggin. “The children may attempt to aggressively insert themselves into their parents' marriage and estate planning process, creating new ethical and legal complexities for the parents’ advisers.”

According to Scroggin, the heirs are often more interested in the effect of the remarriage because “they are the ones who will be most negatively impacted — it can be an awkward process when the kids start raising issues about their loss of a parent’s assets.”