Probate and Blended Families

May 11, 2021

Blended families, which are now quite common, come in all different shapes and sizes. For example, the husband may have his own children, the wife may have her own children and the couple may have children together. For most, a second marriage or more can be a blessing. But for some they come with special challenges, especially in the area of probate. When you and/or your spouse have children from previous relationships, in addition to their own children together, the situation can become rather complex. The same is true for the assets you and your spouse may have brought into the relationship, as well as those assets you accumulate together. Dying without an estate plan, such as a will or trust, (or intestate) has its own problems.

“Intestate Succession”

Dying “intestate” means dying without a will. Every state has its own set of laws and rules regarding how to handle a person’s estate if they die without a will. These laws typically address which descendants are in line to receive your property, which has priority, and the rights that your spouse would have to your estate. These laws are known as the laws of intestate succession. In California, if you die without a will, your assets will go to your closest relatives. Many factors, such as whether you are a parent, are married or single, and how your property is characterized, will dictate who will inherit your property when you die.

Generally speaking, stepchildren do not have inheritance rights with respect to the estate of their step-parents. However, if they are legally adopted by their step-parent then they have the same rights as a biological child.

The Spouse’s Share in California

In California, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property – as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are some exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage. The size of your spouse’s share of your separate property depends on whether or not you have living parents, children, or siblings. If you do, your spouse will share your separate property with them in a priority of order, children first, parents second, siblings third and so on.

Example of an Intestate Blended Family

Husband has a separate property home and 4 adult children by a prior marriage. Together, husband and wife have 1 child. If there is no will when husband dies, his community property and 1/3 his separate property goes to his Wife. His 5 children divide the other 2/3 of his separate property! Wife is now in ownership of the residence with her own child and husband’s children from a prior marriage. Typically not a great place to be.

Oh, an just to add to the mix, if you and your spouse are legally separated — but not yet divorced, meaning no entry of final judgment on the dissolution — when you die without a will, your nearly ex-spouse will be entitled to your property. In California, the rules for married people also apply to registered domestic partners.

What to Consider Before and After Marriage

You should to take a close look at your finances as well as your wants, needs, and wishes after you marry. I suggest you begin by asking the following five simple questions:

What Are My Assets and Debts?

Before you decide who should get what and how they will get it, it is vital that you understand what is yours to give. A shocking number of divorcees don’t have a clear idea of what they received in their divorce, especially when it comes to investments and retirement plans. In addition, many remarried couples never sit down and clearly communicate how they will be combining their finances. It is extremely important to physically list your assets and debts at the beginning of your planning process.

What Will My Current Spouse Need After My Death?

Do you know what your spouse received during property division if he or she is also divorced? Do you know how much support he or she wants, needs, or expects at the time of your death? Again, you should have a candid conversation about your estate before you update or draft estate planning documents.

What Should My Biological Children Receive?

The answer to this question depends on a number of factors, including whether your children are still minors, whether they still share your home, and whether you have an ex-spouse who also contributes support. You also have to consider your children’s feelings regarding you, your new spouse, and your estate plan. The emotional complexities of estate planning with a blended family are just as important to consider as the legal complexities.

What Should My Stepchildren Receive?

Again, the answer to this question may change depending on your relationship to your stepchildren: did you help raise them, or are they adults? Do they need your support? Will giving them assets after your death mean taking them away from your biological children? Will leaving them out cause family strife?

Which Documents and Plans Do I Need to Update?

After understanding what you have and who you would like to give it to, it is time to protect what you have and make your wishes known legally and on paper. If you already have estate planning in place, such as wills, trusts, and life insurance policies, make sure you update them thoroughly and with the help of an attorney. If you don’t have any estate planning in place, speak with an attorney as soon as possible about organizing your future.

If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype or through my online contact form.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.