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Idaho Estate Planning What Options do You Have in a Second Marriage

By Lane V. Erickson, Idaho Estate Planning Attorney

A second marriage can be both a wonderful and a difficult thing for both the spouses and for their separate families. This statement is specifically true when it comes to the estate planning of spouses who are in their second marriages. The reason for this is that a second marriage usually requires the spouses to combine the separate property that they each own in a way that allows there marriage to function. This includes not only combining finances, such as bank accounts, and income streams from jobs, but it could also include deciding how to own and deal with retirement accounts, real property, personal property, vehicles, business ownership interests and so forth.

Without completing some type or kind of estate planning, it's possible that the children and family of the first spouse to pass away may not ever receive any portion of their estate. This is especially true if there is no specific record of any separate property that was owned by the spouse who passed away. It's also very true of any situation where there is no written last will and testament or other estate planning document that would describe the wishes of the spouse who passed away. To put it even more simply, if you do not have a written estate plan, then you have no plan, and you cannot assume that your family will ever receive any portion of your estate. The only way that you can know this for sure that your family will receive a portion of your estate is if you do something to make it happen.

The team of premier Idaho estate planning attorneys at the Racine law office have the ability and skill to help a couple complete their own customized estate plan after a second marriage. The attorneys on our team have assisted clients in a second marriage complete their customized Idaho estate plans for more than 70 years. Our team includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys are experienced and have earned the highest rankings possible on Martindale-Hubbell, Justia, and AVVO, which are all legal reporting services that provide details on the skills and abilities of attorneys. We provide this information simply to let you know that we are both qualified and able to help you with all of your estate planning needs.

The purpose of this article is to give you some thoughts and ideas of some of the things that you can do with your own estate planning if you are in a second marriage. This article is not exhaustive of the options that are available to you, nor does it describe in exhaustive detail the options that are listed. Rather, this article will give you some ideas of things that you can do and that you should discuss with your own qualified Idaho estate planning attorney. So, getting to the heart of the matter, what are some of the things that you can do if you are in a second marriage when it comes to your own personal estate planning?

Giving Gifts While You are Alive

The first thing you can do to make sure that a portion of your estate actually goes to your family members is to give gifts of your estate, including your money, property, and other assets, to your family while you are alive. If you give a gift of jewelry, or real estate, or a vehicle, or cash, or really just about anything else to a family member while you are alive, then you no longer own that item, and your death will have no impact on the change of ownership of that item. In other words, giving a gift of property to a family member while you are alive specifically eliminates your ownership interest in that item.

In second marriages, we often suggest to individuals that they make specific gifts to family members and other loved ones while they are alive for another reason. This has to do with giving you the opportunity to enjoy seeing this family member receive the gift that you are giving. Many times a gift given to someone while you were alive also strengthens the relationship between you and your family member or loved one.

If you cannot give significant gifts of money, property, or other assets away while you are alive because you need those items for yourself, don't despair. There are other options available that will still allow you to control the distribution of those items after you pass away.

Property Settlement Agreement and a Will

Assuming you need to keep your money and property for yourself, then we usually suggest a different option. In this situation a couple in a second marriage can utilize a property settlement agreement and their own last will and testament as the way to control distributing their assets to specific family members and loved ones after they pass away.

While there are many specific details that need to be completed correctly in order for a property settlement agreement to be legally valid, the idea of it is simple. A couple in a second marriage signs an agreement that specifically lists which property belongs to them jointly and which property belongs to each of them individually as their own separate property. Each spouse also specifically releases and waves any claim to any ownership interest in the separate property owned by the other spouse.

When this is done, then each spouse’s individual last will and testament will control who receives the separate property for each spouse. In other words, even though Idaho is a community property state, and there is a presumption that all property owned by a married couple is community property, the property settlement agreement rebuts this presumption and allows one spouse to distribute their own separate property. Neither the surviving spouse nor their family can argue that the separate property should go to them.

Please keep in mind that a property settlement agreement is a very specific and specialized type of legal document. There are also very specific legal requirements in order for property settlement agreement to be valid. If you are considering utilizing one, you should discuss this with a qualified estate planning attorney who has the skill and experience necessary to help you do it correctly.


The final option available to a married couple in a second marriage, that gives them the ability to control the distribution of their own property is using a trust or a series of trusts. When property is transferred into a trust, it is no longer owned by the individuals. Rather, a trust is considered a separate legal person who then retains the ownership of the items transferred into the trust. As a result, the language and instructions in the trust itself will control the distribution of the money, property, and other assets that are owned by the trust.

Again, it cannot be overstated, if you are in a second marriage and you would like to get your estate-planning done, you should consult a qualified Idaho estate planning attorney to assist you. We have helped numerous couples and individuals who are in a second marriage complete their estate planning that allows them to distribute their own property, money, and assets to their own family either while they are alive or after they have passed away. We are confident that we can help you too.

Enlist an Idaho Estate Planning Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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