A couple sat in my office last week—a second marriage for both, children from prior relationships, and a collection of assets acquired over decades. They believed their old, pre-marriage wills would still function, with a vague assumption that the law would “sort it out” and automatically favor the surviving spouse.
This is one of the most dangerous assumptions in estate planning.
Marriage doesn’t just create a personal union; it creates a new legal and financial entity. Relying on default rules or outdated documents isn’t prudent. It’s an abdication of stewardship. A deliberate plan, created together, is the only way to ensure your intentions for each other and for your respective families are honored.
The Myth of Automatic Inheritance
Many people believe that upon their death, everything they own passes directly to their surviving spouse. In New York, this is not guaranteed, especially if a will disinherits or provides very little for the spouse. The law provides a powerful backstop known as the spousal “right of election.”
Under Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has the right to claim a share of the deceased spouse’s estate, regardless of what the will says. This share is the greater of $50,000 or one-third of the “net estate.” This is a foundational protection, designed to prevent the disinheritance of a spouse.
But this legal backstop can also create conflict. If your plan relies on passing specific assets to children from a previous marriage, a spousal election could disrupt that entire structure. It can force the sale of a family business or a beloved property to satisfy the claim. It turns a legal shield into a sword that can undermine your legacy. Intentional planning—using trusts and other tools—ensures this statutory right doesn’t override your specific wishes.
Joint Ownership Is Not an Estate Plan
“We own everything jointly” is another phrase I often hear. Holding a bank account jointly or titling a home as “tenants by the entirety” does allow that specific asset to pass directly to the survivor outside of probate. It’s a convenient tool. It is not, however, a substitute for an intentional estate plan.
Relying on joint ownership has significant blind spots:
- Incapacity: If one spouse becomes incapacitated, the other may not have the legal authority to manage or sell jointly held assets without a court order. A durable power of attorney is a critical contingency.
- Common Accidents: If both spouses pass away in a common event, the jointly held asset will then be forced into probate for each of them, defeating its original purpose. Without a will, the state decides who inherits.
- Creditor Exposure: Assets owned jointly may be fully exposed to the creditors of either spouse.
- Lack of Control: The surviving spouse has total control over the inherited asset. They can remarry, spend it, or leave it to someone you never intended—potentially disinheriting your children.
Joint ownership is a single tactic, not a strategy. A proper plan accounts for these contingencies.
Planning for Blended Families and Legacies
When I work with couples in second or third marriages, the conversation is often about balancing duties. How do you provide for your current spouse while also acting as a faithful custodian of the inheritance you intend for your children?
This is where trusts become essential instruments of stewardship. One of the most effective tools is a Qualified Terminable Interest Property (QTIP) trust.
In simple terms, a QTIP trust holds assets for the benefit of the surviving spouse for their entire lifetime. They receive all the income generated by the trust and may have access to the principal for needs like health care. They are secure. But they do not own the assets outright. Upon their passing, the remaining trust assets are distributed to the beneficiaries you originally designated—typically your children.
This approach honors both commitments. It provides for your spouse’s security and protects your children’s inheritance, preventing it from being diverted by a subsequent marriage or other life events.
A plan is more than a set of documents. It’s the thoughtful structure that protects the people you love. If you and your spouse have not yet created a unified estate plan, the first step is to understand what you currently have. We can begin with a confidential review of your asset titling and beneficiary designations to identify where your current structure aligns with—and diverges from—your true intentions.
