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Planning Is Essential for Second Marriages

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Second marriages

Is your current Mr. or Mrs. Right not your first spouse?  And do you have kids from another relationship?  Second marriages can be wonderfully fulfilling, but step families come with built-in tensions. If this is you, it’s essential to consider an estate plan.  Otherwise, the state of Arizona has a plan, and its rules almost certainly will not be what you want.

If a person dies without a Will, it’s called “intestate,” and state law determines how that person’s property is distributed.  One common surprise:  Surviving spouses don’t always automatically receive their deceased spouse’s property.  If a decedent has no Will, has a spouse, and has children from a prior relationship, the spouse and all kids split the decedent’s probate assets, 50% to the spouse, and 50% to the decedent’s kids.  Even estate planning professionals often don’t get this right or may not be informed about children from a long-ago marriage.  That’s not all that surprising in Arizona, where retirees often remarry other retirees. Prior children may have little involvement in these late-in-life marriages. A surviving spouse’s reaction may be, “What on earth do they have to do with this?”

Consider this fairly common scenario:

Harry and Wanda marry in mid-life and Harry moves into Wanda’s home, which she and her late husband purchased years ago.  Even though the home is the family home, neither Wanda nor Harry even thinks about changing the title.  The couple has a few joint bank accounts and retirement accounts naming each other as beneficiary.  Wanda has two kids from a prior marriage; they are now grown, live in other states, and rarely visit.  Wanda dies with no Will.  The joint and retirement accounts pass to Harry.  If Wanda makes no other arrangements, Harry will become owner of half the home, and Wanda’s kids will become owner of the other half.
Co-ownership of real estate is almost always tricky, but it can be really awkward when you co-own with step-kids you barely know.  What usually happens?  The surviving spouse might have to buy out the kids’ shares or sell the home and split the proceeds.  Either negotiation can be unpleasant when you’ve just lost your spouse and viewed the property as your own home for many years.
For Harry and Wanda, the result could have been avoided by Wanda 1) executing a Will stating that Harry gets the house, 2) changing the deed to name Harry as joint tenant with right of survivorship (or, probably better, community property with right of survivorship), or 3) executing and recording a beneficiary deed naming Harry as the owner at her death.

And there are other options in second marriages

If Wanda instead did want her children to get the house but only after Harry’s death, Wanda could grant Harry a “life estate” or place the residence in a trust, which could have terms that determine when the house would pass to the children (such as upon Harry’s remarriage, move to a care home, or death).  We are partial to the trust because it provides the greatest degree of clarity and flexibility.
While it’s especially important for people in second (or more) marriages to analyze what happens to their assets at death, it’s a good task for everyone: 1) Determine how you hold title to each asset and every account. 2) Check to see if you have beneficiaries named. 3) Consider what will happen if you make no changes.  Is that what you want?  If not, take action.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.