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Ask the Expert: Wills can settle inheritance issues

Please advise readers who are in second or third marriages how to protect their children's inheritance. My late mother and her second husband kept separate accounts and owned their condo as tenants-in-common so the assets they brought into their marriage would pass to their respective children. But Mom's lawyer never explained the "right of election," which is now causing our family a lot of hurt and resentment.

The right of election is a crucial estate-planning factor for every married couple. By New York law, your spouse is entitled to inherit one-third of your estate or $50,000, whichever is greater. This is called the "right of election" because it lets the surviving spouse ignore the will of the deceased, and instead "elect" to receive one-third of the assets.

The surviving spouse can exercise that right against almost any asset that was owned by the deceased, even Individual Retirement Accounts on which another beneficiary was named and money that was left in a bank account in trust for someone else, says Eric Kramer, a Uniondale estate lawyer. (One exception: life insurance policies are paid only to designated beneficiaries.)

To preserve the ability to leave their money as they wish, spouses must waive their right of election in a written prenuptial or postnuptial agreement. For the document to be valid, both parties must disclose all their assets, and each spouse must be advised by his or her own lawyer. Courts take a dim view of contracts in which one attorney represented both parties.

The bottom line A prenuptial or postnuptial agreement provides essential financial protection for your children from a previous marriage.

For more information: bit.ly/5HBIvq and bit.ly/6LDkhm.

The expert wants to know Have you decided to keep your money in a 401(k) or switch to an IRA when you retire? E-mail your answer, name, address and phone number to act2@newsday.com.

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