Can Remarriage Affect Louisiana Estate Planning?

Jun 23, 2022 by Ciolino & Onstott

Can Remarriage Affect Louisiana Estate Planning?
Many people experience confusion when they hear or read about estates, last will and testaments, living wills, powers of attorney, and Louisiana estate planning laws. For others, thinking of what happens to all their possessions after death or divorce puts them under immense stress. When it comes to Louisiana estate planning, both marriage and divorce are major life events that signal when you should revisit your essential life documents and possibly make the required changes. The real question is: Can remarriage itself affect the Louisiana estate planning process? The short answer is yes. 

This blog post will look at a few ways that remarriage can signal when it is time for you to visit a Louisiana estate planning attorney. Here in our beautiful state, our succession and probate laws are much different than the rest of the nation. So, it's vital that you understand how they will impact you, especially if you've been married more than once. 

This blog post is for educational and informational purposes only. It is not a substitute for legal advice. If you need legal advice about Louisiana estate planning laws and how your remarriage may affect succession and probate, please schedule your free consultation with Ciolino & Onstott, LLC. 

What Is an Estate in Louisiana?

An estate refers to all of a person's property, including personal possessions, businesses, and real estate. Generally, during the estate planning process, a lest will and testament is written that allows you to decide how you would like your assets to be distributed to your heirs when you die. Colloquially referred to as a will, this document is not the only estate planning document used to distribute assets. However, it is one of the most common. 

Related: Louisiana Wills: What Happens When the Will Is Silent? 

In some cases, the need to distribute an estate comes after a divorce—and it's important to remember that Louisiana is a community property state. So, if you and your spouse decide that a divorce is imminent, it can impact your estate plan and your spouse's estate plan since certain assets will be split before your plans go into effect. 

Why Do You Need Louisiana Estate Planning Before Remarriage?

When you are remarrying, there's an assumption that a divorced spouse does not want their former partner to inherit anything from them in their existing estate plan. Depending on whether you have an updated estate plan and children with your former spouse, your current spouse or other heirs may find that things can get a little sticky. So, before you decide to walk down the aisle again, it is well worth the time to visit with Louisiana estate planning lawyers to update your documents and discuss your goals. Remember that Louisiana has usufruct, naked ownership, forced heirship, and we do not have joint tenancy with the right of survivorship. Updating your estate plan before you remarry is just as crucial as doing so if you decide to remarry in the future. 

There are still challenges. In the case of one spouse's share becoming a widow without a proper estate plan in Louisiana, there is a spouse's share known as usufruct with children of the deceased inheriting as well. Take the marital home as an example. The spouse would have the right to use the home for life, but the children inherit it. 

Related: Louisiana Intestate Succession: Who Inherits, and What Do They Inherit? 

Throw a marriage, divorce, and remarriage into that, and you can imagine the issues that could arise involving usufruct. 

As complicated as this might sound, you can do something to help make this easier. Create your own Louisiana estate plan. Sit down with a Louisiana estate planning attorney from Ciolino & Onstott, LLC to determine how to address your property. You can determine whether you want your ex-spouse, current spouse, and children from past relationships to inherit specific assets from your estate. 

Protecting Your Assets in a Second Marriage: Louisiana Estate Planning

When thinking of going into a second marriage, there are many concerns about financial security and being able to continue to provide for your heirs after your death. Studies indicate that second marriages end in divorce between 60 and 65% of the time. 

The measures taken to protect your assets through estate planning are not romantic, they are necessary. 

Let's look at some of the factors that may relate to your estate. 

What Happens When Beneficiaries and Fiduciaries Remarry?

Remarriage can disrupt your Louisiana estate planning even when you are not the one who remarries. Sometimes, a beneficiary remarries after you have named them in one of your legal documents. Suppose the new marriage is rocky because their new partner is financially unstable, at risk for lawsuits, or so unreliable that the marriage appears unlikely to last for very long. In that case, it may be time to review your estate plan.

It may be necessary to specify that any inheritance that passes from you to your beneficiary alone must be held in an ongoing asset protection trust for their benefit. This may prevent the inheritance you leave the beneficiary from being attached by their spouse's creditors or even treated as marital property if they divorce in Louisiana or another community property state. In most community property states, inheritances are exempt from community property laws. This isn't always the case. It is best that if someone is going through a divorce that they get legal advice.

Also, there may be cases where you list your siblings as legal guardians for your minor children if you die. If they file for divorce, the court may have issues deciding who receives your property. To avoid this, start now by sitting down with a Louisiana estate planning attorney to update your plan and revise your guardianship decisions. 

How Does Your Current Spouse Factor Into Your Louisiana Estate Plan?

Perhaps you and your current spouse have decided to take a "what's mine is mine, what's yours is yours" approach. If that's the case, it is crucial to understand the nuances of Louisiana's laws, including the applicability of joint tenancy with the right of survivorship, usufruct, naked ownership, and forced heirship. These are especially important if you are remarried. 

Related: Louisiana Forced Heirship Law: Things to Know

Free Consult: Remarriage & Estate Plans

We know you understand that remarriage is a significant life event. To protect your estate plan and ensure that your assets are distributed how you want, you need to work with your Louisiana estate planning attorney to set up and update your plan carefully. Ciolino & Onstott, LLC is here to help. We have the expertise and experience to help ensure that your estate plan works for you and your family exactly as you intend. Schedule your free consultation now

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