Myth: I do not have a prenuptial agreement with my new spouse, so I cannot do any estate planning that might limit how much they will inherit from me at my death.
Fact: The intersection of prenuptial and postnuptial agreements and estate planning is complex, so every case will vary. But in many cases, there are strategies that can help you provide for your new spouse as well as other people or charities you care about. The worst thing you can do is assume that nothing can be done.
Question 1: I am married to my second spouse, and my spouse and my children from my first marriage get along really well. Why would I need to consider estate planning? The state’s plan seems like it will work for us.
Everyone may be getting along well now, but there is no telling what will happen after your death. Court records are full of cases that started with everyone having good intentions but ended with hurt feelings, broken relationships, and high legal fees. Estate planning puts you in charge and allows you to ensure that everyone who is important to you一your new spouse and your children from a prior marriage一understands your wishes. An estate plan is a legally enforceable way to have your wishes, not the state’s default rules, carried out. Proactive planning can greatly reduce the risk of conflict and, in some cases, eliminate it.
Question 2: My new spouse and I own our home, bank accounts, and cars jointly, so why would I need a will or trust?
Owning accounts and property jointly with a right of survivorship does avoid probate and is often better than no planning. However, if you and your spouse were to die at the same time, then the joint tenancy is “broken,” and your respective halves would have to go through probate.
If your spouse survives you, they would own all of the property that was previously jointly owned. Even if the two of you agreed that your children from a prior marriage should be supported or left an inheritance, your new spouse would be the full legal owner of the property you jointly owned and could do whatever they want with it. They could even disinherit your children from a prior marriage.
Question 3: If my children are happily married and I am in a stable, long-term marriage, why should I worry about divorce or the estate planning issues that blended families experience?
Even if none of your children are divorced now, the statistics show that many marriages will end in divorce. In fact, an estimated 1,300 stepfamilies are created every day.[1] Estate planning reduces the risk that your death or your child’s death could be a financial windfall for your child’s soon-to-be-ex-spouse, which can happen if you do not put the proper tools in place. It is wise to hope for the best but plan for the worst so that you can fully protect your loved ones.
Question 4: How do I balance the interests of my children from a prior relationship with those of my current spouse?
We can help you set up an estate plan that protects and provides for whomever you would like一often, that includes your children and spouse. Your estate plan, likely including trusts, will be carefully crafted to balance the interests of all of your loved ones, ensuring that each party gets what they are legally entitled to (in the case of your surviving spouse) and what you want each of them to have. Without proper planning, too many parents in blended families accidentally disinherit their beloved children and cause havoc (and expensive lawsuits). But with proper planning, you can take care of everyone’s needs in an equitable way that reduces the risk of costly conflict.
[1] Stepfamily Statistics, The Stepfamily Foundation, https://www.stepfamily.org/stepfamily-statistics.html (last visited Aug. 26, 2024).
