February is the month of love according to the flower, greeting card and chocolate industries. According to the American Psychological Association, 40-50 % of first marriages in the United States end in divorce and that rate is even higher for subsequent marriages. So what happens when Cupid’s arrow hits you for a second time and you are ready to give marriage another go?

There are several planning options available to you. First, both spouses can agree to an estate plan which addresses how their individual and joint assets are split among each other and their pre-existing children. Second, this issue can be addressed prior to marriage via a premarital agreement. Third, each spouse can execute their own estate plan not addressing the other spouse (but there are consequences to this option, and it is not advisable). And finally, the issue can be ignored potentially causing a mess in the future. I will address each of these options below.

In my practice, one of the most surprising decisions I have seen is that the majority of my clients with blended families choose to treat all children equally. Frankly, this astonished me initially, but I saw this trend repeating over the years. However, one of the factors is the length of the marriage-the longer the marriage the more prone the couple was to treat the children equally and, in some cases, agree to disinherit a child due to a myriad of reasons. This option can be executed through a last will and testament or a revocable living trust.

Another option for couples tying the knot again is to address estate planning issues (among other things) with a premarital agreement. One or both spouses can choose to waive their respective elective share and/or property rights in the agreement. In Virginia, spouses cannot disinherit their spouses unless the spouse agrees to waive his or her share of the estate. Virginia Code Section 64.2-308.4 went through a significant statutory rehaul taking effect January 1, 2017, changing the elective share percentage to a 50% maximum of the couple’s marital property depending on the length of marriage in order to get to the value of the marital property portion of the augmented estate. The maximum 50% is only applicable if the marriage is 15 years or longer with a lower percentage assigned depending on the length of the marriage. Prior to this change, a spouse was entitled to a maximum of 30% if the deceased spouse had children (outside of the marriage no matter the length of the marriage. So, if a couple chooses the third option above, this elective share statute would take effect should the surviving spouse choose to do so.

According to a Gallup poll in 2016, less than half of Americans have a will. Virginia Code Section 64.2-200 addresses what happens to an intestate estate. An intestate estate is one where there is no will or revocable living trust (“trust”). If a married person dies without a will and is married, his or her spouse will inherit his or her entire estate IF he or she has no children outside of the marriage. However, if the deceased spouse is married and has children outside of that marriage, the surviving spouse takes the elective share as discussed in the paragraph above. If the deceased Virginian is not married but has children, the children will share in the estate equally if there is no estate plan in place. The intestate statute addresses other scenarios which I won’t go into at this time, but I believe you can see how this option is not the best when it comes to executing an estate plan.

Love is a many splendored thing indeed. So, if you meet that very special person and are willing to try again, include estate planning in your discussion. You don’t need to make any firm decisions right away but opening the door to each other’s thoughts is a good step in the right direction.

Elizabeth McMaster is an elder law and estate planning attorney in Central Virginia. She has had a practice in Fredericksburg, Virginia since 2007 and plans to open an office in the Hampton Roads, Virginia area the summer of 2020.