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Inheritance and Second Marriages


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#1 SarahBelle48

Posted 07 December 2012 - 09:24 AM

I have a question regarding second marriages and how that affects inheritances. Sorry if this has been done before but the search wasn't overly helpful.

Lets say a man has adult children from a first marriage and his first wife passes away, leaving everything to him. He then marries another woman who has several of her own adult children from her first marriage. She's divorced so her children have a father.

If the man passes away before the woman, does everything go to the second wife if he doesn't stipulate otherwise? And would the children have any grounds to contest this if it happens? If there have been verbal promises made or something along those lines.

Subsequently, when the second wife passes away, does everything go to her children? Or is she under any obligation to give anything to the stepchildren?

Thanks original.gif

Edited by SarahBelle48, 07 December 2012 - 09:27 AM.


#2 JECJEC

Posted 07 December 2012 - 09:30 AM

Its a good idea to have a will then it is based on how you want to distribute.

Also inheritance is state based so you would need to see the legislation in your state.

#3 qak

Posted 07 December 2012 - 09:30 AM

I don't think there's any easy answer to that; and the answer may vary from state to state.

This is a situation where a testamentary trust could be suitable.

This is a very good reason for everyone to ensure that they have a valid and binding will in place, and to regularly update their will.


#4 meggs1

Posted 07 December 2012 - 09:37 AM

If there is no will then the estate (after payment of debts and funeral expenses) will be dealt with according to the law in the state where he was residing.

So for example in NSW it would be the Succession Act 2006. http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/



#5 Ianthe

Posted 07 December 2012 - 09:45 AM

I think this is dependent of how the will is set up.

My father and mother are divorced. My father is remarried and has a son from that marriage. I have two other brothers. When my father dies there is some stipulation that we can't boot my stepmother out of her house. When she dies then the assets will be halved-half to go to my brother from that marriage (her share), and the other half (Dad's share) to be split between all four of us.

You probably don't want to know what I think about that wink.gif OK here goes. My father got a larger percentage from the divorce settlement, my stepmother came into the marriage with no assets. I think it should be divided evenly. And it's not about the money. It is to do with the fact that she doesn't ever want to be referred to as a stepmother or tell people that we are her stepkids but does treat us differently in every way to her biological son (which is understandable as we were teens when we met). It's the inconsistency that upsets me. It's all a pretty moot point as my stepmother is only 14 years older than me.

#6 MrsLexiK

Posted 07 December 2012 - 09:48 AM

QUOTE (SarahBelle48 @ 07/12/2012, 10:24 AM) <{POST_SNAPBACK}>
I have a question regarding second marriages and how that affects inheritances. Sorry if this has been done before but the search wasn't overly helpful.

Lets say a man has adult children from a first marriage and his first wife passes away, leaving everything to him. He then marries another woman who has several of her own adult children from her first marriage. She's divorced so her children have a father.

If the man passes away before the woman, does everything go to the second wife if he doesn't stipulate otherwise? And would the children have any grounds to contest this if it happens? If there have been verbal promises made or something along those lines.

Subsequently, when the second wife passes away, does everything go to her children? Or is she under any obligation to give anything to the stepchildren?

Thanks original.gif


If the adult children are not classified as dependants this would be mostly how the state would divide it up.  If the adult children are still considered dependant then the spouse would be left with x amount (this is capped) and then the dependants would be left with another amount to be split evenly.  Adult children does not mean they are not still a dependant.  If the state thinks they are no dependant then all money would be left to the spouse (if married/defacto) or follw the lines of succession (this is for vic and what I was taught in probabte law)

So say there is $500K, the husband dies.  One of the children he has is still seen as dependant, the wife gets 1/3 or $320K (not 100% of the forumal these days as we are going back 5 years), the dependant child would then get the left over.  Both would be seen to do as they see fit.

This would be why my mother and SF went to the solicitors to sign their will in between the wedding and going on their honeymoon.  Why my Grandmother has an iron clad will, and why my mother is trying to get her father to make up trusts as opposed to just leaving money.

#7 SarahBelle48

Posted 07 December 2012 - 10:03 AM

Thank you for the responses. I am asking on behalf of my DH and his siblings. Their father is remarrying next year and they have raised concerns that FIL will go back on promises that he made assuring them that the property he owns and lives in will be left to them. This property was built by FIL and MIL many years ago, its where the family lived for many years before moving out and is the last place their mother lived before she passed away. So I was just trying to clarify whether FIl would need to specifically stipulate this promise in a will for it to be upheld or whether the verbal promises would be enough. It appears that some other promises regarding this property have already been broken, hence the concern that this promise will also be broken. Its not so much about the money or anything else, its mainly about this particular property.

#8 JRA

Posted 07 December 2012 - 10:11 AM

A verbal promise is nothing.

A will is always required.

#9 asdf89

Posted 07 December 2012 - 10:12 AM

Just something to think about... a marriage invalidates a will unless the will specifically states that it remains valid after the marriage.
So if he's got a will, but it's one he's had for ages and hasn't updated it to reflect the upcoming wedding and then (hypothetically and heaven forbid) dies before he gets to write a new will, he will not have a valid will = potentially making legal headaches for your DH and family.

So make sure his will is updated... or updated soon after the wedding.


ETA: the example I was given was... a man and a women get married (second marriage for both and both have children). on the way home from the wedding they get into a car accident. the man dies at the scene (and the marriage has invalidated both of their pre-existing wills) so all his assets are now his wifes. she then dies at the hospital later - all her assets (including those of her husband) go to her children, leaving the husbands children with no inheritance. I'm not sure how accurate this is, and surely the children of the husband could challenge this outcome, but something to think about when parents remarry.

Edited by asdf89, 07 December 2012 - 10:17 AM.


#10 qak

Posted 07 December 2012 - 10:15 AM

QUOTE (SarahBelle48 @ 07/12/2012, 11:03 AM) <{POST_SNAPBACK}>
So I was just trying to clarify whether FIl would need to specifically stipulate this promise in a will for it to be upheld or whether the verbal promises would be enough.


Absolutely, it needs to be in his Will. But remember, a Will can always be changed.  Alternatively - they could ask for it to be gifted to them now (but there would be stamp duty issues).

#11 JustBeige

Posted 07 December 2012 - 10:35 AM

The FIL will need to specifically leave the property to his children, otherwise it will be included in the 'all assets' clause (in NSW) and go to the new wife, who if she dies without a will, the inheritence would go to her kids.   Your DH and sibs would then need to challenge the wifes kids for the property.  

Also, if DHs father dies and the property is included in "general assets" then there is nothing to stop the wife from selling and moving.

The FIL needs to be very specific in regards to this property.   I think that the kids would need to have a very honest conversation with their dad about what they need in regards to their mums memory.

Edited by JustBeige, 07 December 2012 - 11:13 AM.


#12 steppy

Posted 07 December 2012 - 10:44 AM

As a rough guide, from what I understand, in the scenario where the man dies without stipulating anything in a will, yes it would go to the second wife and yes the first family children will be able to contest this outcome.

In the second scenario, if it is not stipulated, the money would go to the husband first and yes her children could contest it. If her will left all her money to her own children, it would be unlikely that the husbands children could contest it because they must have been dependent on the stepmother's money at some time to be able to claim.

In any case, these situations require legal advice and carefully thought out wills to ensure everyone gets the result they are happy with. Not an easy situation, unfortunately.

#13 Giota

Posted 07 December 2012 - 10:52 AM

I was just talking about this with my husband the other day we both have one child each and the same assets so we want to split evenly between the kids after our deaths but not before.

Can you control how the money is split after the death of the remaining spouse?

Edited by WollongongGirl, 07 December 2012 - 10:56 AM.


#14 JRA

Posted 07 December 2012 - 10:55 AM

QUOTE
Can you control how the money is split after the death or the remaining spouse?


If you leave it in a  trust for that child, yes.

#15 Giota

Posted 07 December 2012 - 10:58 AM

QUOTE
QUOTE Can you control how the money is split after the death or the remaining spouse?

If you leave it in a  trust for that child, yes.


That figures - gets complicated. Would you recommend seeing an accountant as well as a solicitor?

#16 JillyJellyBean

Posted 07 December 2012 - 10:59 AM

A will is only an intention though, so any will can be overturned. I believe in mostv states the law is that everything should be divided equally among interested parties. (ONly if the will is contested.) I would certainly seek legal advice.

#17 JustBeige

Posted 07 December 2012 - 11:12 AM

QUOTE (WollongongGirl @ 07/12/2012, 11:58 AM) <{POST_SNAPBACK}>
That figures - gets complicated. Would you recommend seeing an accountant as well as a solicitor?

Yes. especially if you are talking about properties or significant assets

#18 GeminiSix

Posted 07 December 2012 - 12:13 PM

My Dad passed away 11 years ago.  My mum remarried a man who had also lost his wife.  Both owned houses outright, which they each sold, and have purchased a house together.  

Mum has money in some type of retirement/pension type fund that was hers and Dad's.  Her share of the remaining funds from her house sale has gone into this.  My stepdad has his own account containing funds he brought into the marriage.

Wills have been set up so that if Mum passes first, my stepdad is allowed to stay in the house for as long as he likes.  At that time, my 4 siblings and I will receive what is remaining in Mum's account.  My stepdad will keep the money that is in his own account.  If he sells the house, half of the proceeds will be divided between my 4 siblings and I.  If the house sells after his death, the proceeds of the house will be divided half between my 4 siblings and I, and half between my stepdad's 3 children.  

If my stepdad passes first, the same thing applies in reverse.  

My stepdad has far more money in his accounts than my mum, he has chosen to support her as he doesn't want her left with nothing to live off if he passes first.  It is a lovely gesture.

So yeah, your DH's dad needs to organise wills.

#19 Old Grey Mare

Posted 07 December 2012 - 12:22 PM

QUOTE (GeminiSix @ 07/12/2012, 01:13 PM) <{POST_SNAPBACK}>
My Dad passed away 11 years ago.  My mum remarried a man who had also lost his wife.  Both owned houses outright, which they each sold, and have purchased a house together.  

.......


My stepdad has far more money in his accounts than my mum, he has chosen to support her as he doesn't want her left with nothing to live off if he passes first.  It is a lovely gesture.

So yeah, your DH's dad needs to organise wills.


Can I nominate them for the Sensible Award for 2012?

I cannot understand why people are reluctant to make a written Will? I have seen the mess left when there is no Will and also when there is a poorly written one. My DH refuses to organise his as he believes it is bad luck to do so!

#20 epl0822

Posted 07 December 2012 - 12:24 PM

Once money passes ownership, it would be incredibly hard for anybody else to have a say. Isn't that the whole idea behind giving somebody your money? It passes out of your hands and you can no longer dictate what happens to it (especially after death, one would presume). If there is a concern that your surviving spouse might remarry a gold digger and eat up your hard earned assets, you should specify in the will how much goes to your children.

#21 Tigerdog

Posted 07 December 2012 - 12:28 PM

I think it all depends on whether or not the children are dependent or not - if adults, as stated by you OP, they would probably go with whatever the wishes of the deceased are or the rules of natural succession if no Will is in place.

Edited by Tigerdog, 07 December 2012 - 12:29 PM.


#22 threelittlegems

Posted 07 December 2012 - 12:34 PM

My SIL's father passed away many years ago, and left her mum well looked after financially.

SIL's mother remarried at the age of 50 to a lovely, but broke divorced man with 3 estranged adult children.

SIL's mother did not have a will. SIL's mother died last year after a very short battle with cancer. Her estate has gone to her husband, who is still close to SIL and does intend to leave SIL an inheritance at some point.

Meantime, the estranged adult children have spent the last year repairing their relationship with their father, and are most likely expecting an inheritance too. Which I thinks sucks as the mother provided all of the money in the relationship.

Peoples, if you entering second marriages, make sure your will is sorted!


#23 Phascogale

Posted 07 December 2012 - 12:56 PM

This is why my dad has his house as a 'tenants in common' ownership rather than 'joint ownership'.  So his half of the house needs to be dealt with rather than going to the other 'owner' (my stepmum).  There are provisions so that my stepmum doesn't have to sell up.

I have a good relationship with my stepmum but I have no illusions that if my dad died first that just about everything will go to my step brother and sister and my 'half' brother (actually most of my stepmum's family don't even see that relationship between ,e and my half brother and call me his stepsister so as much as I hate the term half brother, it's quite relevant to use in this example).

However my dad's will is written on one of those will kits (when he had a healthscare) and I have no idea where it is but I suspect my uncle has a copy (I really hope he does).  I don't think my dad would ever get an iron clad will written by a lawyer.

I'm not expecting to get anything and at this point my dad doesn't seem to be interested in having any sort of relationship with any of us (not through lack of us trying).

#24 MrsLexiK

Posted 07 December 2012 - 01:05 PM

QUOTE (SarahBelle48 @ 07/12/2012, 11:03 AM) <{POST_SNAPBACK}>
Thank you for the responses. I am asking on behalf of my DH and his siblings. Their father is remarrying next year and they have raised concerns that FIL will go back on promises that he made assuring them that the property he owns and lives in will be left to them. This property was built by FIL and MIL many years ago, its where the family lived for many years before moving out and is the last place their mother lived before she passed away. So I was just trying to clarify whether FIl would need to specifically stipulate this promise in a will for it to be upheld or whether the verbal promises would be enough. It appears that some other promises regarding this property have already been broken, hence the concern that this promise will also be broken. Its not so much about the money or anything else, its mainly about this particular property.

As it has been stated before yes he would, he could hold it in trust until SMIL passes or whatever (I know my grandfathers will is written like this)  BUT it seems like your FIL has changed his mind about who and how he wants things left.  Ultimatly if the house is his he can choose to do what he wants with it.  

QUOTE (Old Grey Mare @ 07/12/2012, 01:22 PM) <{POST_SNAPBACK}>
Can I nominate them for the Sensible Award for 2012?

I cannot understand why people are reluctant to make a written Will? I have seen the mess left when there is no Will and also when there is a poorly written one. My DH refuses to organise his as he believes it is bad luck to do so!


I agree and I disagree.  I only wrote a will about 6 months ago and it was only so that money didn't go to a particular person who it would have otherwise gone to if both DH and I died.  We will of course be writing another will again once this baby is born, but that is only because the house is in my name and DH would be up the creek if we had a child because then it wouldn't automatically go straight to him.  We of course would have a letter written up with gurdianns for our child but a will if we were both owners on our house I am not sure we would go to the effort (we did go to the effort once on the 3rd draft when they still had it wrong I scrapped it - and of course going to the socilitors office is a PITA as they are only open 9 - 5) We are beneficiaries on each other's life insurance super.

I feel sick that my SIL doesn't have a will though, house is in her name, it doesn't matter how many times I tell her to write the will and explain her DH will not just get everything she doesn't.

I have had a client whose will was not excuted correctly.  Oh my that was horrible, we are talking about someone who had assets in the millions and liabilities also in the millions.  Whose wife had no idea what was going on with the accounts and of course all accounts had been frozen.  It took close to a year to get probate.

My uncle it took about 2 - 3 months to get probabte (well about 6 weeks to get probabte and then about 6 weeks for the money to go into our accounts), he had no will but he had no assets.  As he meet the terminal illness benefit they paid out his super, the company were extra nice and even paid out life insurance that had technically expired so this was sitting in his accounts. This was his only asset which in the grand scheme of things was not actually much at all. (under $50K I think)

If I was single person, or just in a couple with little to not very many assets I wouldn't bother with a will.  However second third marriages I don't get why people don't get wills.  Death and the thought of potiential money brings out the worst in people.

#25 mmuc83

Posted 07 December 2012 - 01:12 PM

QUOTE (SarahBelle48 @ 07/12/2012, 10:03 AM) <{POST_SNAPBACK}>
Thank you for the responses. I am asking on behalf of my DH and his siblings. Their father is remarrying next year and they have raised concerns that FIL will go back on promises that he made assuring them that the property he owns and lives in will be left to them. This property was built by FIL and MIL many years ago, its where the family lived for many years before moving out and is the last place their mother lived before she passed away. So I was just trying to clarify whether FIl would need to specifically stipulate this promise in a will for it to be upheld or whether the verbal promises would be enough. It appears that some other promises regarding this property have already been broken, hence the concern that this promise will also be broken. Its not so much about the money or anything else, its mainly about this particular property.


This happened to my DH.  FIL remarried and they live in the house that FIL and MIL built etc etc...  promises made, now broken - and no will...

If your FIL really wants to make it known his wishes then he needs to draw up a financial agreement (pre nup in some states) and a binding will that is witnessed by a lawyer.. none of this online stuff... it'll cost them a few $$ but worth the stress in the end...

It is complicated but best done by a professional..




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