Second Time Around: Legal Considerations for Remarriage

“If at first you don’t succeed, try, try again.” That old saying could be applied to many marriages in the United States. According to the Centers for Disease Control and Prevention (CDC), there were 2,041,926 marriages in this country in 2024. At the same time, the CDC reported 672,502 divorces across 45 states and the District of Columbia.

Even after a failed marriage, many are willing to take the plunge again. A Forbes article stated that 40 percent of new marriages include a partner who is remarrying, while 20 percent are repeat marriages for both parties. It is worth noting that some of those first marriages may have ended due to the passing of a spouse; however, the fact remains that second marriages are not at all uncommon.

When couples enter into a second, third, or even fourth marriage, they rarely do so without history. There may be children from prior relationships, accumulated assets, or existing financial obligations. In these situations, love may be the reason for marriage, but clarity and planning are the foundation for peace of mind.

Putting the Children First

No matter what the number of marriages is, children should always be a prime consideration. For those entering a second marriage, there may be children from a previous marriage, or even grandchildren, to consider. Dealing with financial matters related to the children and grandchildren can present complex challenges.

Without clear agreements in place, such as a prenuptial, there is a significant risk of conflict—either during the marriage or in the event one of the spouses passes away. A prenuptial agreement is an effective tool to prevent misunderstandings. It defines what is “mine,” what is “yours,” and what, if anything, will be “ours.”

This agreement is especially important when one spouse wishes to make significant gifts to children or other family members. Without a prenup, a spouse could be accused of breaching one’s fiduciary duty by giving away something that is considered community property. A prenup can allow each party to control their own property without creating such a conflict.

In addition to a prenuptial agreement, second-time couples should think about estate planning, which is particularly important for newly blended families. If one spouse were to pass without affairs being in order first, the survivors would be left with greater confusion, higher legal costs, and potentially unnecessary taxes—all of which can take years to sort out. Of course, laws vary by state, but in nearly every case, when proper documents are not in place, the estate may not go to the people intended.

This is why I believe it is crucial to have a well-crafted estate plan, prepared by a skilled estate planning lawyer. I suggest avoiding the temptation to hire a paralegal or online service to draft an estate plan. Using a true professional will avoid costly mistakes, help to reduce taxes, avoid expensive probate, and ensure wishes are appropriately honored. Work with an estate planning counsel to ensure documents specifically name all family members. Without that, there is a risk of inadvertently disinheriting children from a previous marriage. For blended families, a solid estate plan can also head off disputes that hold the potential for destroying relationships.

Considerations Around Finances

Whether a first-time marriage or a second, third or fourth go-round, financial considerations are important. Once again, a prenuptial agreement can be highly beneficial. If the spouses elect to designate certain property or assets as separate, the goal is to keep them truly separate. It is crucial to avoid commingling these assets, keep detailed records, and invest proceeds separately. Expenses related to a separately designated property should not be paid from shared resources.

It should be noted that in some states, such as California, anything acquired during the marriage is presumed to be community property, unless clearly documented otherwise. Simply having a separately titled bank account is not enough.

Another important financial consideration is support. When no prenup exists, obligations like spousal support, child support, or education/medical expenses for children from a prior marriage must be paid from separate assets. Using community funds could risk creating a reimbursement claim from the community. A properly drafted prenuptial agreement can allow payments from community funds without creating a right of reimbursement, thereby avoiding unnecessary tension.

Financial considerations, such as prior obligations, underscore the need for a prenuptial agreement in a second marriage. A prenup can clarify payment responsibilities for prior family commitments, and enumerate how future purchases or joint ventures, like buying a house or investing in a business, or even travelling extensively, will be handled.

A Few Final Thoughts

The outset of a second marriage is an ideal time to update legal documents, such as wills and trusts. It goes without saying that life changes. Laws change, too. Estate plans should change as well. Births, marriages, grandchildren, health issues, or changes in tax law all warrant a thorough review. Sometimes, children may develop circumstances, such as substance abuse, that require adjustment to the terms of an inheritance, making it more restrictive. Failing to update documents can mean assets are distributed to unintended beneficiaries or in ways inconsistent with the spouse’s final wishes.

When someone comes to me concerned about protecting themselves in a remarriage, I walk them through real-life examples, so they understand the implications of every choice. Many arrive thinking a prenup will be “simple” and leave realizing that life is rarely that neat. Clarity is protection.

Every marriage can benefit from thoughtful planning. In a second marriage in particular, where lives, families, and histories intertwine, that planning is not only optional – it is essential.

Please note: The content and views expressed here are my own and do not reflect or represent the positions, strategies, views, or opinions of Blank Rome LLP.