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Spousal Elective Share Protection

Commingling finances for any couple can be a stressful event. But, couples getting married the second time around may not be prepared for the legal impact of their new marriage. It is a commonly held perspective that a spouse in a second marriage should have limited rights to the assets of the new spouse. In fact, many descendants from prior marriages tend to hold this belief, but that is not how the law works.

All states (except Georgia) protect the surviving spouse with a legal claim called “spousal elective share”. This claim disallows a spouse to be left with no assets, even if the deceased spouse made arrangements to disinherit the survivor. The laws vary by state, but generally the surviving spouse is entitled to receive 30 to 50 percent of the estate. The spousal share is similar to claims made by creditors and takes priority over bequests in wills. For states operating under community property law, the elective share is not relevant because the surviving spouse is considered owning half already.

Estate issues are complicating and many people do not like to discuss the possibilities for obvious reason. However, it is important all couples evaluate their estate situation periodically since it and your perspective about it changes as you transition through life. For couples getting married the second time, it is crucial you have a conversation about sharing of assets before you tie the knot. Equally important is to continue that dialogue as your relationship evolves over time.

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