Why Second Marriage Cases Could Result In Probate

There is a significant possibility that your estate plan could end up probate. If you choose to create a will, it has to. But what about probate litigation? And why would a second marriage lead to it? 

People might point out that half of all marriages end in divorce. But what about second or even third marriages? The odds of divorce increase. 

And the majority of people who get divorced do get remarried. 

Why Do I Need To Think About This?

Estate plans need to be updated as your life changes. If you take nothing else away from this, remember that. A second marriage is merely an example of how your life can take a new shape. 

Think about the following set of circumstances:

  • You and your spouse have a child together
  • You pass away
  • Your spouse gets remarried and starts a new family
  • Your spouse passes away and leaves nothing to the child you two had together

Because your original child might challenge it, the above scenario is an example of how a second marriage could result in probate.

1 Estate Or 2?

You must understand what commingling is. This term applies to more than real estate. In this context, commingling is the blending of estates. 

  • You have a child, get divorced, and remarry
  • A person passes away
  • You inherit money
  • That money goes into an account shared by you and your new spouse

Although your spouse did not inherit that money, you have commingled your inheritance with your shared, martial money. 

To add another layer of complication, if you pass away, does that inheritance go to your children from your previous marriage or does your spouse keep it? Because of where the money went, it is no longer your own to give away. 

Although this is why a second marriage could cause complications and result in an estate going to probate, there are ways to avoid it. Don’t commingle funds. 

If you are aware of the potential complications, you can prevent them. Before receiving an inheritance, talk to an attorney. She could explain how to keep those funds in your possession. It is too easy to commingle funds inadvertently.  


When you pass away, your 401(k) must go to your current spouse. The only way around this is if your current spouse waives it. 

For other investments, you can choose the beneficiaries. They could be your children, for example. You can also have your child’s name added to your brokerage accounts as well. 

Luis E. Barreto & Associates, P.A.

If you are involved in probate litigation, Luis E. Barreto & Associates will represent you. Losing a family member is an emotionally complicated process. We don’t want you to have to endure probate litigation without someone looking out for your interests. Contact us online to schedule a free consultation. We can also be reached at (305) 358-1771.

Luis E. Barreto