Crafting Fair and Comprehensive Estate Plans for Blended Families Across Southern California

Times have changed. In the new millennium, whether due to the death of a spouse or through divorce, blended families now outnumber traditional nuclear families. And the number is likely to grow, based on current statistics and trends. As you can imagine, estate planning for blended families encompasses a multitude of aspects.

Many blended families face unique social, psychological, and economic challenges. As a result, over 60% of second marriages end in divorce.

If you already have an estate plan created when you were “previously” married, then we can help bring it up-to-code to reflect your new wedding vows. Unfortunately, little attention has been paid to the critical estate planning challenges confronting blended families. These challenges include disinheriting your ex-spouse and protecting your own children.

What is Estate Planning?

Estate planning is the legal process of determining what will happen to you and your assets as you reach old age. While many people are aware of the concept of wills, a will is only one component of an estate plan. While estate plans may vary from person to person, most estate plans will include, but are not necessarily limited to:

• A Will
• Trusts
• Advance Care Directives
• HIPAA Authorizations
• Power of Attorney

Estate plans are often tailored to meet the specific needs of an individual and their immediate family. In other cases, an estate plan may take into account an extended family or close friends. Many people neglect to update their estate plans in the event of a remarriage. This is often a mistake. Depending on the language of an estate plan, you may accidentally keep former spouses and step-children in the line of succession for your assets. This may, in turn, result in you accidentally disinheriting new spouses and their children. This is why consulting an experienced blended family attorney is vital for anyone getting remarried.

What is Disinheritance?

Disinheritance is the legal process of formally excluding someone from receiving any portion of your estate after you are gone, including money, real estate, vehicles, and other assets. When people hear the word “disinheritance,” they often believe it only applies to cutting children out of a will. This is not necessarily true.

Disinheriting a spouse is a key element of the divorce and remarriage process, which many people do not consider. However, without proper disinheritance, you may accidentally cut new family members out of your will. In fact, failure to disinherit one individual can create a legal situation where you necessarily disinherit other people, regardless of whether that was your legal intent.

Why Do I Need to Disinherit My Ex-Spouse?

Failure to disinherit an ex-spouse may result in your new family being partially or entirely cut out of your will. It may also unintentionally leave your ex-spouse as the sole or majority inheritor of your estate.

For example, many people explicitly list their spouses in a will to ensure they will be protected in the event of a death. However, some people fail to alter their will following a divorce and remarriage. Without properly updating your will to disinherit your former spouse, you risk accidentally leaving them your estate. Simply getting remarried does not negate the terms of your previous will. Though your new spouse and children may be legally entitled to your estate, explicit language in a will leaving assets to your former spouse can take legal precedence.

Similarly, without proper legal planning, your ex-spouse (as surviving parent/guardian) would likely be appointed by the probate court to manage any inheritance you leave to your minor children. This would theoretically give your former spouse access to your assets and the ability to control what happens to them. Failure to disinherit your spouse may also indirectly profit them, even if you only intend for your assets to go to your children. For example, if you passed away, and then one or more of your children predeceased your spouse, they may stand to inherit any money or assets you intended for them. This could lead to lengthy and expensive estate litigation. This is why you must consult with an experienced and compassionate blended family attorney before a remarriage.

Why Do I Need to Worry About Child Custody in a Blended Family?

Child custody is another concern many people fail to consider when planning for blended families. If you pass away while married to a spouse other than the biological parents of your children, it can affect what happens to your children. For example, suppose you remarried a new partner who has taken an active role in your child’s life. In some instances, a step-parent may be more influential and present in a child’s life than their biological parent. However, if you pass away, your child may be “given back” to their other biological parent. They may even be prevented from seeing your new spouse. This can be particularly challenging if you have children from a previous relationship with your new spouse.

In this event, it could mean siblings being “broken up” as your children from a previous marriage are forcefully separated and returned to their biological parents. Proper blended family estate planning can prevent this potentiality. An experienced and compassionate Bakersfield blended family attorney can review your unique circumstances and help draft an estate plan that accounts for child custody. This can help ease any transitions and prevent children from being separated from the only family they may know.

What is a Prenuptial Agreement?

A prenuptial agreement is a type of marriage contract signed before the actual marriage ceremony. They are also sometimes called “what’s yours is yours and what’s mine is mine” arrangements. A prenuptial agreement allows spouses to dictate what will happen to their assets in the event of a divorce. California is a community property state. This means that assets attained by a couple during the course of their marriage are considered to belong equally to both partners. In the event of a divorce, a court would normally have to intervene to determine how assets are divided. A prenuptial agreement can supersede this by establishing precisely what will happen to what assets in the event of a divorce.

Prenuptial agreements can be essential in the event you are creating a new, blended family. In the absence of a premarital agreement to maintain separate assets, most spouses in blended families tend to blend their wealth. For example, they title their respective assets in the names of both spouses and also designate one another as the primary beneficiary of their respective retirement plans and life insurance policies. While this arrangement works for many couples, it can be potentially disastrous.

For example, if you predecease your new spouse, then you may forever disinherit your own children from your share of such blended wealth, unless you have stipulations in place about what will happen to them in the event of your death. Thereafter, upon the death of your new spouse, your assets may be inherited by your stepchildren, or even by your new spouse’s next spouse and their children.

This is why a prenuptial agreement can be vital. A prenuptial agreement can state, prior to the marriage, who will remain in the line of succession and who will be disinherited in the event of a divorce. This can prevent any potentially messy situations at a later date.

What Should I Do if I Need to Estate Plan for a Blended Family?

Regardless of whether children are reared in a traditional nuclear family or in a blended family, great care should be given to protect any inheritance both for them and from them. For starters, wealth representing a lifetime of your hard work and thrift can be squandered in very short order. Dollars earned are just spent differently than dollars inherited. In addition to good old-fashioned squandering, an inheritance can quickly vanish through divorces, lawsuits, and bankruptcies. This is why, if you or a loved one is planning on forming a blended family, consult the Law Offices of Robert H. Brumfield, P.C.

Robert Brumfield and his dedicated legal staff love nothing more than helping new families form and grow. He takes special joy in seeing people start off on new beginnings, get second chances, and bring their families and loved ones together. He can review the unique circumstances of your new blended family and help draft an estate plan that protects all of you in the event of any unforeseen circumstances.

Forming a new family can be both rewarding and highly challenging. Fortunately, with proper (and very careful) estate planning, you can both honor your vows to your new spouse and provide an inheritance that is protected for and even from your own children. Don’t hesitate. If you or a loved one is planning on getting married and forming a new blended family, don’t hesitate to call the Law Offices of Robert H. Brumfield, P.C., today at 661-384-6940 to schedule your free consultation.