There are lots of reasons to do estate planning, but at its core, people plan for their estates to make things easier on the ones they leave behind. In the situation of a blended family (think Brady Bunch, i.e. children from prior relationships), the likelihood that things will not go smoothly for your loved ones after you are gone is a distinct possibility. In fact, I would wager dollars to donuts that the majority of litigation inquiries estate planning law firms receive, are those from the children who feel that they’ve been disinherited.
What is often the case, a person’s estate plan (whether inadequately prepared, or via default) calls for all assets to be left to the surviving spouse. Generally speaking, this is a good thing. I for one would not want my estate to go anywhere else. However, the issue is the way in which the assets are commonly left to the surviving spouse creates the potential for the deceased spouse’s children to be disinherited.
How great is the potential for disinheritance? It’s only a matter of the surviving spouse changing her estate plan to leave off the deceased’s children. To many, this would seem unimaginable, and hopefully so. We like to think that we can trust our spouse even beyond the grave, but I would suggest it’s not the surviving spouse you need to worry about.
There are two potential culprits here we might consider. The first is the enterprising step-child who’s either fallen on tough times or is looking to improve his station in life through an inheritance. However, the more likely culprit is wife (or husband) number two. She/he wants to make sure they’re taken care of should anything happen to your surviving spouse. It’s not difficult to imagine how a surviving spouse, particularly in his twilight years, may be convinced to make some changes to his will.
However unlikely the disinheritance scenario seems, the possibility undeniably exists. Fortunately there is a relatively straight forward solution which provides for the surviving spouse without risking the children’s inheritance. What estate planning attorneys commonly employ to resolve these issues is the living trust. Among the many advantages of a living trust – beyond avoiding probate – is to give someone the use and enjoyment of assets during their lifetime, but directing those assets to someone else after a certain period or event. In the case of a blended family, the assets of the first spouse to die would remain in trust for the benefit of the surviving spouse, but would be directed to the first spouse’s children at the death of the second spouse.
These are of course other aspects to consider when developing an estate plan. In the law, as in most other things in life, there is no one size fits all solution. It’s best to speak to your estate planning attorney to develop a plan that works for you. If you would like to learn more, contact Brady | Cobin Law Group, PLLC, your Raleigh Estate Planning Attorney for an initial consult – (919) 825-1518.