While it is important to have an estate plan in place to distribute your assets and property after you die, not everyone feels the need to execute a will or a trust to do this. People who do nothing have their property distributed according to the laws of intestate succession in the Wisconsin Statutes which distributes someone’s property upon their demise should they not have a will or a trust.
If you have only been married once and are still married to that individual, the Wisconsin Statutes provide that your property will be distributed solely to your spouse. If you have only been married once, and your spouse has predeceased you, but you have children together, then your property will be distributed equally among your children.
But what happens if you have gone through a divorce and subsequent remarriage?
This situation is becoming more common as the number of people getting divorced increases, along with the increase in the number of marriages. If you remarry and die with no children from your previous marriage, the statutes provide that all your property would pass to your surviving spouse.
However, if you do have children from a previous marriage, your property may not be distributed in the manner which you expected it would. The Wisconsin Statutes divide your individual property so that your surviving spouse will receive one-half of your individual property and your children will equally divide the remaining one-half of your individual property. Thus, anything that you brought to the marriage or inherited during the marriage would be divided between your surviving spouse and children.
The Wisconsin Statutes also give your entire interest in your marital property to your children. This is because Wisconsin’s marital property laws allow for almost all property acquired during the marriage be considered marital property, with each spouse having an undivided one-half interest in it. Thus, because the surviving spouse already has their share of the marital property, they do not receive any of the decedent’s marital property.
This can become problematic if the decedent and their spouse purchase a home and only title it in the decedent’s name. The decedent’s interest in the home would pass to their children, not their spouse from the second marriage unless certain elections are timely made, which often times, they are not.
The same goes for an account titled solely in the decedent’s name. While it may have been the intention that the money in the account would be available to provide for the surviving spouse, it will also be divided between the surviving spouse and the decedent’s surviving children, thus potentially causing the surviving spouse to not have the available resources to provide for their support after their spouse’s death.
Therefore, it is important to develop an estate plan if you have children, have gone through a divorce and subsequent remarriage to ensure that your spouse will not find themselves in the unfortunate situation of not being able to fully provide for themselves after your demise because they may find themselves having to divide your assets with your children from the prior marriage, instead of having it all available for their support.