By Ashley L. Hawley
December 15, 2022
When I meet with new clients I have them fill out what we refer to as our estate planning “questionnaire.” Basically, a form that asks them to insert personal information on the first two pages and financial information on pages 3-5. Page one asks about marital status and page two asks the potential client to list their children, checking boxes for either biological or adopted. The questionnaire is helpful, providing me with background information, but it does not always provide a full picture. I am often surprised when clients list their children as their biological children on our form, but then I find out that they are really biological to only one of the parents. Or, when they simply do not list a child in that section at all, indicating to me during our meeting that the relationship is “estranged,” as if that somehow means the child is no longer their child from a legal perspective. Mixed or blended families often flow into the next generation as well. More and more couples are not getting married, or are marrying people who have children from a previous relationship. In both of these scenarios, the children might grow up without even knowing they are not a “legal heir” to their parent or grandparent.
Unfortunately how we think of our beautifully complex family situations is not how the black and white law views these relationships.
I have written before about how important it is to put your wishes in writing and the blended family situation is a primary example of where the law cannot keep up. I want to start off this conversation by again pointing to the law of intestacy. I often refer to this law as the “default rule.” If you do nothing, i.e. no will or trust, the statute says we know what you want, you want to have half of your assets go to your spouse and the other half of your assets go to your children if those children are not children of your current relationship.
What happens if you are not married, but you have children together? Well, in that case, the default rule says all of the assets should go to your children, not your significant other. What if you are married, but have not legally adopted your spouse’s children? Well, they are not your children if you have not legally adopted them, so they are excluded. What if you are estranged from your children and have not seen them for 30+ years? That does not matter, they are still your children. Twice this year I have had to break the news to biological siblings that because their deceased brother or sister was legally adopted, they are not heirs to his/her estate. Worse, in both of these cases, the closest relatives to the adopted family were strangers to the deceased. Obviously the “default” rule fails to provide the best result in a variety of situations.
So, what do you do? You come up with your own rules, you decide who gets your assets—you do that by crafting a well written estate plan. As an estate planner, my goal is to figure out what your goals are and put those goals in writing. Any member of our Estate Planning team at Ruder Ware can talk you through your options and bypass that pesky “default rule.”
Ashley also explored this topic in a recent vlog.
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