The Problem of Second Marriages

On occasion, you will have clients who have been married twice, each of whom have children from an earlier marriage. The first issue is should you represent both of them. I think you can obtain a waiver and represent both of them, but that is not the question. Although the conflict can be waived, the question is should you waive the conflict.

Assuming you represent both of them, their wills will probably be different, since they each have different children. If the contingent beneficiaries are children of both marriages, I don’t think you have a problem, and once you have decided you can waive the conflict, it is necessary to prepare a contract to devise pursuant to N.J.S.A. 3B1-4. The contract should obligate you not to change your wills. However, this is illusory since you can make gifts during your lifetime and defeat the purposes of the contract to devise. Therefore, you must also have language in the contract to devise that you will not make gifts to defeat the purpose of your wills. This is not illusory, but I would refer to it as amorphous since you could spend money on your own children that would be difficult and hard to trace.

Therefore, second marriages are fraught with issues without absolute solutions and the conflicts should be seriously considered. That is, assuming there is a conflict, should you waive the conflict and how you preserve the rights of each.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© June 2012, Post 202