We’ve all heard stories about evil stepmothers, but what about evil stepchildren? Second marriages, especially when one or more parties have children from a prior relationship, come with unique concerns about inheritance. However, you can mitigate many of these issues and protect your assets from your stepchildren by taking some additional steps in your estate planning.
Communicate with Your Spouse About Estate Planning
The best way to protect your assets from your stepchildren is to communicate with your spouse. What do you each want to happen to your estate when you pass away? Don’t just consider your financial accounts. Perhaps you and your spouse are living in a home your spouse brought to the marriage. Will you remain in the home after your spouse dies? It is critical to discuss these issues.
Ensure Joint Assets Are Titled Properly
If you and your spouse own a home jointly, you want it to be titled as a joint tenancy with rights of survivorship. This allows you to become the sole owner of the home if your spouse should pass before you. Since it automatically becomes yours at your spouse’s death, it is not considered part of your spouse’s estate and will be less vulnerable to attacks from stepchildren.
Document the Estate Planning Decisions You Make as a Couple
Both you and your spouse should execute new wills and/or trusts that align with the decisions you have made regarding your estate plan. If you don’t do this and your spouse passes without a will or trust, both you and your spouse’s children will be entitled to certain amounts of the estate per the laws of intestacy in the state you reside in. Do you want the courts to decide what you get if your spouse dies?
Additionally, a well-written will that is properly executed is likely to stand up in court in the event your stepchildren attempt to challenge the will after your spouse’s passing in order to receive a larger share of the estate than they are entitled to under the will.
Utilize Joint Trusts in Your Estate Plan
Depending on the amount of assets held by you and your spouse, a joint revocable trust may protect your interests and have tax benefits. For instance, if you are the only beneficiary of the trust, in the event of your spouse’s passing, your spouse’s children will have no interest in the trust assets. This protects the assets from them.
You and your spouse can also decide to hold all assets in trust for the surviving spouse but organize the trust so that after both of you have died, the remaining assets will be divided among the children of one or both of you.
Importantly, there are many options for structuring a trust to meet your needs. Whatever you agree on, you should have an experienced attorney draft the appropriate documents.
Communicate the Estate Plan with Both Sets of Children
It is extremely beneficial for a parent to explain their wishes to a child prior to their passing. Children who are informed about their parent’s wishes before his or her passing, are much less likely to contest a will. It is much more difficult for a child to claim that their parent was coerced or that you exerted undue influence upon their parent if they have previously discussed their parent’s wishes.
Comply with Divorce Decrees in Your Estate Plan
You should also ensure that you and your spouse’s estate plans take into account any distributions previously agreed to with the parent of your respective children. For example, your spouse may have signed a divorce decree that states he or she must leave a certain amount to the children of that marriage upon death. This must be included in your spouse’s estate plan. Just because your spouse re-married, does not relinquish them from this responsibility.
Failing to abide by a prior divorce decree is sure to lead to a will contest by the stepchildren and possibly even the ex-spouse and/or a claim against the decedent spouse’s estate.
Consult an Experienced Attorney
An attorney can guide you and your spouse through your estate plan to protect your respective assets from stepchildren and ensure your wishes are implemented properly.
If you need to revise your estate plan for your second marriage, contact us for a consultation. We help clients develop a customized plan that addresses the needs of both families and their children.
