Blended families are becoming more common. Remarriage after a divorce or the death of a spouse can lead to some interesting estate planning considerations. For instance, how will you provide from the children of a prior marriage while also incorporating your new spouse into your estate plan? Can a trust rather than a will offer more options for your newly-blended family? And who will be in charge of carrying out your vision and wishes when the time comes?
When considering these questions, following are some scenarios to keep in mind:
1. Do Not Assume Your New Spouse Will Provide for Your Existing Children.
Married couples often make simple wills leaving their entire estates to one another. In the case of remarriage and blended families, leaving all assets to the surviving spouse can lead to the children of the first spouse to die being omitted from the survivor’s estate plan entirely. Your new spouse may make provisions in their own estate plan for your children, but is not legally required to do so—indeed, the law considers stepchildren to be legal strangers to their stepparent!–and may, after your death, change any provisions previously made for your children.
2. The Reverse May Also Be True.
Conversely, if you leave your entire estate to your children, do not assume they will provide for your surviving spouse. They have no legal obligation to do so absent binding instructions in your estate plan. Therefore, if you want your spouse to retain certain rights–such as the ability to continue living in your house–then you need to make explicit provisions before your death.
For example, if you are the sole owner of the marital home, you might consider creating a “life estate.” A life estate for your surviving spouse can be created by deed, in your will, or in your trust. The life estate allows your spouse to continue to live in the house until your surviving spouse’s death or until the occurrence of a specified event, such as moving out or remarriage, at which time the house is owned in full by your children (or whomever else you leave the “remainder” to). Such an arrangement can help protect both your spouse and children.
3. A Trust Can Give Blended Families Greater Flexibility.
Placing your assets into a trust is often the best option for satisfying the often-competing impulses of providing for your spouse and your children. With a trust, you can leave certain assets to your spouse that they can continue to use during their lifetime, while stipulating any remainder goes to your children. In other words, the assets you place in trust will not be subject to your spouse’s own estate plan that may leave them to parties other than your children.
A trust also enables you to name an independent trustee who can serve as a neutral third-party to ensure that your plans are followed after your death.
4. Do Not Forget About Other Estate Planning Documents
A complete estate plan includes not just a will or trust, but also a power of attorney and advance medical directive. You need to carefully consider your blended family situation when naming agents under these documents. Particularly if your new spouse and your adult children do not get along, you need to take care that whomever you name as agent will not use their authority to prejudice the other.
5. Always Consult with a Qualified Estate Planning Lawyer
Estate planning can be complicated even in simple family situations. But given the complexities introduced with a blended family, it is all the more imperative you work with an experienced estate planning attorney who can guide you through the process. When you need advice or assistance in creating, reviewing, or revising your estate plan, please call Promise Law at (757) 690-2470 or contact us here.