Estate Planning for Blended Families and Second Marriages

December 28, 2018

In today’s world the “traditional family” of a man, woman and their 2.5 children is becoming a lot less common.  The term “blended family” has been coined to describe multiple families that are brought together and integrated into each other.  A blended family can mean that one or both parents bring children from a previous relationship to the family.  It may also mean that while there are children from a previous relationship, some of the children are children of that union.  Step-siblings, half-siblings, and adopted children are becoming the norm. 

A blended family can mean great challenges for individuals who do not plan or who do not update their plans.  Under the law of intestacy (dying without an estate plan), the assets of an individual go outright to their spouse UNLESS the children of the marriage are not biological or adopted by both parents.  Many times in divorce situations the children brought to the new marriage by one spouse are not adopted by the other (perhaps because the biological parent is still involved, or perhaps because the new union happened after the child turned 18).  In these instances, per the law of intestacy, the couple’s assets are split – half going to the spouse and half going to the deceased person’s children.  Some people may be agreeable to this split – wanting their assets divided equally between their spouse and their children.  Some people are under the misconception that marriage means when they pass away all of their assets will go to their spouse.  In addition, depending on the age of the children when the first spouse dies, following the laws of intestacy may mean that the assets of the individual go to minor children.   

Along the same realm of the blended family, we are also seeing a lot more second marriages, generally speaking.  The fact is that people are living longer, and if a spouse dies early, the surviving spouse has a considerable amount of time to “start over” with someone new.  Whether they decided to actually get married is another question.  They may elect not to get married for planning purposes (what if one or the other goes into a nursing home?), or they may elect not to get married simply for personal reasons (what would the kids think if they got remarried?).  Again, per the laws of intestacy, if the couple is not married, upon their death they do not provide for the surviving partner, and if they are married but they have children from a previous relationship, the assets will be split between the new spouse and those children (whether that was their intention or not).   

So, what does this mean for estate planning purposes?  It means that if you have a blended family or a second marriage or both, you should really consider putting your wishes into writing.  You may want to have all of your assets go to your spouse (regardless of whether you have children from a previous relationship) or you may want to have all of your assets go to your children (and bypass your spouse completely).  You may also want to provide for your spouse’s children even though you have not legally adopted them.  These are all things to consider, and to put in writing.  A well drafted will, trust, and marital property agreement are necessary to ensure that today’s blended families are well provided for even after death.

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