Prenups and Second Marriages: Protecting Children and Planning with Clarity

Second marriages bring the opportunity to build something new—but when either spouse has children from a prior marriage, planning ahead becomes more than smart: it’s essential.

Many people assume that a Will is enough to ensure their children will inherit what’s intended for them. But under New York law, that’s not always the case. If you’re remarried and don’t have a prenuptial (or postnuptial) agreement, your new spouse has a “right of election”—a statutory right to claim a portion of your estate, regardless of what your Will says. That means your children could unintentionally lose out on a significant portion of their expected inheritance.

Prenuptial agreements aren’t just for planning what happens in the event of death—they also provide critical protections in the event of divorce. This is especially important when children from a prior relationship are involved. Without a prenup, assets accumulated during the marriage may be subject to equitable distribution under New York law, potentially diverting resources away from your intended heirs.

The best way to address these concerns? A thoughtfully crafted prenuptial or postnuptial agreement, paired with careful estate planning and life insurance strategies.

Why a Prenup Matters in a Second Marriage

1. Protecting Inheritances for Children from a Prior Marriage
A prenup can identify and protect specific assets—like real estate, investments, or a family business—that you want to preserve for your children. This helps ensure they aren’t unintentionally diverted to your new spouse in the event of death or divorce.

2. Waiving the Spousal Right of Election
In New York, your spouse cannot be disinherited by Will alone. Only a written agreement, such as a prenup or postnup, can waive this statutory right. With a waiver in place, you can leave your assets to your children while providing intentionally for your spouse through other means.

3. Preventing the Loss of Gifts and Inheritances Through Commingling
While gifts and inheritances are considered separate property under New York law, that status can be lost if the assets are commingled—such as being deposited into joint accounts or used to pay for marital expenses. A prenup can preserve their separate status and prevent costly disputes.

4. Life Insurance Strategies to Balance Interests
A common solution is to use life insurance to provide for your new spouse while reserving your estate for your children. This approach can support a waiver of the right of election and avoid complications like life estates or shared ownership of real property.

5. Planning for Divorce, Not Just Death
While no one enters a marriage expecting it to end, planning for the possibility of divorce is a responsible step—especially when children from a prior marriage are counting on you.

A well-drafted prenup can:

• Protect Pre-Marital Assets: Specify that certain assets—like a pre-owned home, retirement accounts, or a business—remain separate property and outside the scope of marital distribution.
• Clarify Appreciation: Ensure that growth on certain assets (e.g., a 401(k) or investment account) remains your separate property and doesn’t become subject to division.
• Address Spousal Support: Set expectations for whether spousal support will be paid, in what amount, and for how long—protecting your ability to support children financially.
• Define Ownership of the Marital Home: Clarify rights to a residence you already own, so it doesn’t unintentionally become marital property.
• Reduce Conflict: With clear terms in place, both parties can avoid prolonged legal disputes—minimizing financial and emotional costs, especially for children.

Final Thoughts: Peace of Mind Through Planning

This isn’t about anticipating failure—it’s about protecting everyone involved and setting the stage for a secure future. With the right prenup, supported by life insurance and estate planning strategies, you can care for your spouse, protect your children, and make sure your wishes are honored with clarity and compassion.