Even in a traditional family situation, a will can better help you protect your children. Parents in a blended family situation should carefully consider how their estate would be divided in the event of their death (note: this article assumes both spouses have a Last Will and Testament and that neither has died without a Will). The best way to illustrate these challenges is to compare a blended family to a traditional family’s typical estate plan. In a traditional family, the surviving spouse typically takes all of the deceased spouse’s property (see chart below). The theory is that the surviving spouse would have all the assets through the remainder of their life as though their spouse was still living. Upon the surviving spouse’s death, his or her estate would then be evenly distributed among their children.
These assumptions about each spouse’s estate change in the case of a blended family. For example, assume the wife has two adult sons from a previous marriage and the husband has one adult daughter from a previous marriage. If the wife died first and left her estate to the husband, the wife’s sons may or may not be a part of the husband’s Will. Also, if the wife leaves all of her property to her husband, she has no way to control her portion of her property once she is deceased and it is distributed to him.
If the two spouses drafted their wills at the same time, the husband’s Will may have included his stepsons. However, now the husband’s might daughter receives proportionally less if all three children are to receive equal shares (see chart below). Additionally, if the husband then remarries, his deceased wife’s sons may not receive any of their mother’s estate. Alternately, the husband could simply revise his will to totally exclude his deceased wife's sons.
In order to prevent those types of problems, the wife's property could go directly to her sons. Now, the husband would not be able to use both his and his wife's assets for the remainder of his life.
Even if the two spouses are in agreement about leaving their property to their children and stepchildren (once they are both deceased), another issue is how they should divide up the surviving spouse's property once he or she is deceased. Depending on how old the children were when the two spouses got married to each other, the surviving spouse may either want to divide his or her property equally between his or her children and stepchildren or he or she may try to preserve each spouse's share as though they remained single for the rest of their life (i.e. the wife's sons each get a quarter of the husband's property and the husband's daughter gets half of the husband's property)
Many families under this scenario are best served by a blended family trust. This method both preserves the deceased spouse's property for the remainder of his or her surviving spouse's life and then distributes the surviving spouse's property (which is a combination of the deceased spouse's and the surviving spouse's property) to their children and stepchildren as though each spouse had remained single.
Please contact our law office today to set up a consultation to discuss your specific needs. The above is for general information purposes only.