How Can I Protect My Child’s Inheritance in a Second Marriage?- Having a revocable trust may or may not protect assets for biological children on the death of their parent if the parent has remarried. This is why a recent article from the New Hampshire Union Leader, “Know the Law: Ensuring Assets go where you want in your revocable trust,” advises readers to speak with an experienced estate planning attorney.
Surviving spouses in many states are permitted to claim an elective share of their deceased spouse’s estate to avoid being disinherited or being inadequately provided for when the spouse dies. If the decedent has children, the surviving spouse is entitled in some states to one-third of the probate estate. In some states, revocable trust assets are not automatically included as part of the decedent’s probate estate.
If there are assets in a revocable trust for children, they may be protected if the surviving spouse waives testate distribution and decides they’d rather claim the statutory elective share. Under certain circumstances, the surviving spouse could ask the court to set aside transfers of assets made into the revocable trust. If the court determines the transfers were invalid, then the revocable trust will become part of the probate estate and part of the elective share calculation.
In some states, the scope of the statutory elective share automatically includes assets in revocable trusts. Suppose someone moves from a state where this is not the case to a home in a state where revocable trust assets are considered part of the probate estate for elective share purposes and the estate is probated in the new state. In that case, that portion of the revocable trust assets will be available to the surviving spouse.
If the revocable trust isn’t fully funded and the assets intended to go into the trust remain in the spouse’s name, such as bank accounts and real estate, those assets will also be part of the probate estate.
Depending upon the plan rules and state laws, surviving spouses may also automatically be the beneficiary of any qualified retirement accounts, like 401(k)s or 403(b)s. Unless the spouse waives their right to the survivor benefits, they are, in most cases, the only person who will receive the pension assets.
Concerns about not disinheriting children from a prior marriage are often addressed through estate planning. However, a pre-nuptial agreement could also define what each spouse would be entitled to in the event of a divorce or when each spouse dies.
A consultation with an estate planning attorney in your state should take place to protect the wishes of the spouses and their respective children. It’s best to address the issues before walking down the aisle to prevent any misunderstandings in the future and start a new marriage with a clean slate. However, these issues can also be addressed with the guidance of an experienced estate planning attorney.
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How Can I Protect My Child’s Inheritance in a Second Marriage?
Reference: New Hampshire Union Leader (Aug. 18, 2025) “Know the Law: Ensuring Assets go where you want in your revocable trust”
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