I’ve never written or discussed these things with anyone so excuse me if this seems too simple. I have been married to my husband for 10 years now. This is his second marriage, and he and his first wife have a son who just graduated from university and will work in finance in New York. His first wife never remarried.
This is my first marriage and I have two adult children from a previous relationship. Together, my husband and I have a son. It’s a good marriage and we are happy. However, when I ask him about finances, wills, etc., he tells me, “You will get it all.” I find this answer rather a cop-out. How do I reply to this? I have so many questions regarding my future. I would really like things to be in order should anything happen to either one of us.
Firstly, will his ex-wife receive Social Security from him or any of his life insurance? Secondly, my name is not on the home which he bought before our marriage. I really hadn’t considered this in our first years of marriage, but it’s really bothering me now. I’m not going anywhere, and when I asked to be added as a 10-year anniversary gift, his reply was simply, “Okay, get your FICA scores and we’ll see what’s next.” I admit, I’ve not moved on from this.
‘ I would like to make sure my own son is taken care of as well as myself, especially since my husband is a much older father the second time around. ’
I believe myself to be an honorable person, and I would never question my husband’s wishes in regards to his first son. I too love him dearly. But I would like to make sure my own son is taken care of as well as myself, especially since my husband is a much older father the second time around.
My stepson benefited from two Ivy League parents who afforded him with the best schools money could buy, and he is now prepared to have a successful career in his own right. My son, however, is struggling in public school, has two aging parents (one reaching retirement age) and has years of struggle ahead.
Do I have a right to ask just what my husband’s plans are in the case of a life-changing event? I should add that my husband is 15 years my senior and his first wife pretty much called the shots in regards to their divorce agreement. Bravo to her! I don’t blame her for wanting to look out for herself and her son. But where do I fit in?
The Wife
Dear Wife,
You always have the right to ask.
Whatever it takes, do it. This is a partnership. You should not be left in the dark. Aside from them causing tension and/or uncertainty in your marriage, if these estate-planning issues go unresolved, you’re right: Without a will, you may get some unwelcome surprises after your husband is gone (assuming he passes away before you). I urge you to have this conversation with a lawyer and/or financial planner. And, ideally, bring your husband along even if it’s under some other financial pretext.
Estate planning is stressful and it may be that your husband believes he has done everything to ensure you will be taken care of after he dies, assuming he predeceases you. As long as you are both open and honest about what you would like to happen, you should in theory be able to have a productive conversation with an attorney or planner about all aspects of your estate planning. But such decisions should never be made under pressure or coercion. If he is uncomfortable with making certain provisions, back off.
Such decisions should never be made under pressure or coercion. If your husband is uncomfortable with making certain provisions, back off.
Your husband’s ex-wife would likely receive benefits from his Social Security because she never remarried, but these only kick in at 62 years of age or older and if the benefit she is entitled to receive based on her own work is less than the benefit she would receive based on her ex-husband’s work. If she remarried, it’s unlikely she would be able to collect benefits on her former husband’s record unless the later marriage ends (whether by death, divorce or annulment).
“Generally, if you remarry, benefits paid to you on your former spouse’s record stop. You should report your new marriage to us to avoid being overpaid,” according to the Internal Revenue Service. But worry less about his ex-wife and more about your own future.
But let’s talk about you. You are also entitled to Social Security spousal benefits. “The spousal benefit can be as much as half of the worker’s ‘primary insurance amount,’ depending on the spouse’s age at retirement,” the Social Security Administration says. “If the spouse begins receiving benefits before ‘normal (or full) retirement age,’ the spouse will receive a reduced benefit. However, if a spouse is caring for a qualifying child, the spousal benefit is not reduced.”
“When a worker files for retirement benefits, the worker’s spouse may be eligible for a benefit based on the worker’s earnings,” it adds. “Another requirement is that the spouse must be at least age 62 or have a qualifying child in her/his care. By a qualifying child, we mean a child who is under age 16 or who receives Social Security disability benefits.”
If you lived in California, as he has more than one child, you would inherit all of the community property and one-third of the separate property.
Who gets his life insurance would depend on the listed beneficiary and his original divorce agreement. In many states, the surviving wife does not inherit all her husband’s assets if there are children. The size of each of your and your husband’s children’s inheritances would depend on how many children your husband has (three in this case, one of whom you share). If you lived in California, given that he has more than one child, you as the surviving spouse would inherit all of the community property and one-third of the separate property
If he died without a will and he prefers to keep his name on the deed of the house, he could instead give you a “life estate” — that is, you will have the right to live in the home for the rest of your life and, after you pass away, your husband’s children would inherit the property. You would not be able to sell the home if it became too expensive to maintain.
Again, laws vary by state. Texas law, for instance, provides a widow/widower with a “spousal homestead right,” allowing the surviving spouse to remain in the family home for the rest of their life, according to the Silberman Law Firm, which has offices in Texas. “This right ensures that, even if [the wife] doesn’t own the property outright, she cannot be easily displaced.”
“For widows navigating this path, understanding their rights and the legal framework is crucial,” it adds. “This situation, while challenging, highlights the critical need for clear communication and estate planning to protect the interests of all involved, ensuring the wishes of the departed are honored and the surviving spouse is supported.”
Texas law provides a widow/widower with a ‘spousal homestead right,’ allowing them to remain in the family home for the rest of their life.
In California, there is a 10-year divorce rule. If you split and you lived in that state, your prospects would improve. “If you’re nearing the 10-year mark and considering a divorce, this rule could significantly impact your settlement,” says the Anthoor Law Group in Fremont, Calif. “It often influences decisions related to alimony and retirement benefits, making it a critical factor in divorce negotiations.”
In your case, for what it’s worth, a “quit claim” would add you to the deed of the home and ensure that you would inherit the property. Or he could make you a beneficiary of the marital home with a transfer-on-death deed or through a trust.
You have every right to ask your husband about his plans in case of a life-changing event, especially given that he doesn’t appear to have any. You may not like the answer, but at least you will be able to plan accordingly.
You can email The Moneyist with any financial and ethical questions at qfottrell@marketwatch.com. Check out the Moneyist private Facebook group, where we look for answers to life’s thorniest money issues. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.
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