Blended Families and Wills in Estate Planning Estate Planning

By Dan Armstrong, Attorney, Jacksonville Beach, FL

Today, 16 percent of children in the United States live in blended families, according to U.S. Census data. This can include those living in households that have a stepparent, stepsibling, or half-sibling.

In many cases, stepchildren receive the same treatment as full biological children in the case of inheritance. This is particularly true where stepchildren are part of a blended family from an early age. Biological siblings may have different feelings about a stepchild inheriting what they perceive as theirs as a natural heir. Likewise, a surviving spouse may have the same feelings about their own children’s inheritance.

TRANSFERRING AN INHERITANCE

Estate planning for blended families is key to a smooth inheritance process. Probate rules and intestate succession law may not treat inheritance the same for stepchildren and biological children. Open communication about your estate plan is also helpful in managing the expectations of your heirs.

Trying to be equitable among your heirs can be tricky. You may hope your spouse and children will work things out after you have passed away. However, you want to avoid this common estate planning mistake. It can easily create unnecessary heartache for the loved ones you leave behind.

Carve out some quiet time and identify your most important estate planning goals. This includes deciding how you would like to divide all your hard-earned assets between your various loved ones.

These assets include your house, car, jewelry, other personal items, investments, retirement plans, brokerage accounts, and insurance. If you opt to gift items before your death, be certain you no longer include the asset or property in your estate plan. Even items of little financial value may be an expected inheritance from the perspective of a child.

The goal is to reduce tensions among family members. An experienced estate planning attorney can help you identify and sort through some potential options.

CREATING A TRUST

Share your ideas with your spouse and agree on a basic approach, including scenarios for who might pass away first. Leaving property outright to a surviving spouse may not be the best approach. As noted above, this does not ensure that the children (including any children from previous relationships) will ultimately benefit. Many blended families use a trust to provide for a spouse while leaving their property to their children.

With a trust, for instance, you can leave assets to your spouse while they are alive, with the balance later transferring to your children. Partner with an experienced estate planning attorney to execute the legal documents that work best for your specific situation.

BEWARE OF WILL CONTESTS

Parents in blended families should be aware of the possibility of a will contest. Stepchildren can contest a will, seeking the same treatment as a full biological child, if you have named them in a prior will. For example, a will that you wrote before a remarriage creates an opportunity to contest.

Note that your stepchildren have little chance of inheritance without a will. In fact, in most states, if you die without a will , your stepchildren will not inherit from you. (Dying “intestate” is the legal term for dying without a will in place.)

In states where they may be eligible, stepchildren could still be last in line to inherit. This may be the case under the laws of intestate succession, depending on where you live.

A stepchild named in a previous will can challenge on the grounds of undue influence, lack of capacity, mistake, fraud, or coercion. If the contested will is thrown out of probate, estate inheritance reverts to the next most recent will. A stepchild must be named in at least one prior will to have “standing” to challenge the will.

If the court finds that all wills are invalid, the state will treat stepchildren as intestate heirs. (Learn more about preventing a will contest in this article .)

While contesting a will is permissible under certain circumstances, there is no guarantee it will be successful. To ensure your loved ones will follow your legacy wishes, consult a qualified estate planning attorney. Professionals in this area will understand the intricacies and nuances of estate planning for blended families. They also may be able to help you problem solve and navigate difficult conversations between parents and children.

WHAT TO KNOW ABOUT SEPARATE WILLS

A biological parent and stepparent may make their wills simultaneously and agree to leave the estate to one another. Their will may, for example, leave equal shares to biological and stepchildren.

A surviving spouse can always change their will upon the death of the other. The surviving spouse may in fact choose to exclude the stepchildren. However, a stepchild could then contest the most recent will and claim that it is invalid.

WHAT ABOUT RECIPROCAL OR MUTUAL WILLS?

A reciprocal will is a legal document created by two individuals, typically spouses or partners, where they agree to leave their assets to each other in the event of one person’s death. In a reciprocal will, both parties outline their wishes for how their estate should be distributed after both of them have passed away. This type of will is often used by couples who want to ensure that their assets are passed on to each other and then to their chosen beneficiaries.

However, most states do not recognize reciprocal or mutual wills as a binding contract. A mutual will can only be enforced if it specifically constitutes a binding contract that can’t be changed. Again, consider creating a trust to care for a surviving spouse and your children’s inheritance. This can be more reliable than depending on mutual wills and goodwill after you have passed away.

WORK WITH AN ESTATE PLANNER

Contact an estate planning attorney near you for guidance on the right estate planning documents for your family. If your family experiences any major life changes, such as the birth of a child or a move to a new state, always review and update your estate plan.

For additional reading, check out the following articles:

• No Will? You’re Putting Your Kids at Risk
• Make Sure Your Beneficiary Designations Match Your Estate Plan
• Benefits of Life Insurance as Part of Your Estate Plan

Dan Armstrong