One of the more complex areas of estate planning law deals with blended families. If a person dies without a will, the intestate succession law applies; this law is different and more complex when stepchildren are involved. Also, if a married person writes a will, and leaves her spouse less than a certain percentage of the estate, the spouse can take a share of the estate greater than what the will provides. Also, if a person writes a will, and is divorced after writing the will, the divorce revokes all provisions in the will that would have benefitted the former spouse.
Some ways to avoid complex estate planning issues include 1) updating your will after you are married, 2) will contracts, 3) prenuptial agreements, 4) trusts, and 5) ensuring that your family members trust each other. I will discuss this in further detail below.
Intestate succession and blended families
If a person dies without a will, the person is deemed to have died intestate. If a person dies intestate, then a state law determines how that person’s property is to be distributed.
In Oklahoma, the intestate succession law says that if a person dies, leaving behind a spouse, and descendants who are not descendants of the surviving spouse, then the surviving spouse gets:
· ½ of the property that was acquired “by the joint industry of the husband and wife” while the husband and wife were married, and
· “an undivided equal part in the property of the decedent" that the spouses did not acquire by their joint industry while they were married "with each of the living children of the decedent and the lawful issue of any deceased child by right of representation”
Here’s an example of how this works:
Joe dies. He leaves behind a wife, Jane, and three children, Alfred, Betty, and Charles. Joe’s three children are not Jane’s children. Joe has no will.
Jane gets ½ of the property that she and Joe acquired by joint industry during the marriage. Alfred gets 1/6 of this property, Betty gets 1/6 of this property, and Charles gets 1/6 of this property.
But Jane only gets ¼ of the property that she and Joe did not acquire by joint industry during the marriage. Alfred gets ¼ of this property, Betty gets ¼ of this property, and Charles gets ¼ of this property.
See the intestate succession law, here.
Another issue: the “elective share” of the spouse
The elective share law also comes up often in cases involving blended families. The elective share law says that if a person dies, and has left a will that gives his spouse less than half of the property that he and the spouse acquired by joint industry during the marriage, the spouse may take ½ of the property that he and the spouse acquired by joint industry during the marriage.
Consider the example above, where Joe dies. He leaves behind a wife, Jane, and three children, Alfred, Betty, and Charles. Joe’s three children are not Jane’s children.
Before Joe married Jane, he wrote a will leaving all of his property to Alfred, Betty, and Charles. After Joe married Jane, he never changed his will. Jane may take her “elective share” and take ½ of the property that she and Joe acquired by joint industry during the marriage.
To read the elective share law, click here.
How divorce affects wills
Oklahoma law says that if a person writes a will, and then is divorced, “all provisions in such will in favor of the testator's spouse so divorced are thereby revoked.” The testator does not need to change his will, and there doesn’t need to be anything in the divorce decree revoking the provisions in the will in favor of the spouse. Under this law, the decedent’s former spouse is treated the same way as if he predeceased the testator.
How to avoid difficult situations
The above scenarios often cause headaches for probate lawyers and judges (for example, how does a court determine which property was acquired by joint industry during the marriage?) Because of this, it’s wise for many spouses with blended families to develop a good estate plan. There are a few ways this can be done:
Updating your will after you get married
After you marry, it’s probably a good idea to update your will. You probably want your property to be distributed in a way differently than state law provides. Updating your will allow you to effect this.
Will Contracts
In a will contract, the parties agree to distribute their property a certain way. For example, let’s look at the example above where Joe and Jane are married, but Joe has three children who are not Jane’s children.
Joe can write a will that leaves all of his property to Jane if she survives him, and all his property to his children if the children do not survive him. At the same time, Jane can sign a contract, where she agrees that after she dies, she will leave all her property to Joe’s children.
If Jane then writes a will leaving her property to someone other than Joe’s children, the will is still valid. However, Joe’s children can still sue Jane’s estate for breach of contract.
Prenuptial agreements
This is where the spouses, before they get married, sign a contract to devise their property a certain way. Oklahoma law specifically says that “a will shall be subservient to any antenuptial marriage contract in writing.” So, in the example above, if Joe and Jane entered into a prenuptial agreement that Jane would leave her property to Joe’s children after she died, and Jane writes a will leaving her property to someone else, the will is subservient to the prenuptial agreement, and Joe’s children may still inherit.
Trusts
A trust is a legal entity where one person (the trustee) manages property for the benefit of another (the beneficiary). You could create a trust, and name your spouse as beneficiary. However, you could insert a provision into the trust that says your spouse has to transfer the property to your children after your death. For more information on trusts, read my post here.
The best way to avoid conflict – try to ensure that your family members get along
Contested probate cases generally occur because family members don’t like each other. A situation that often leads to litigation occurs when a person with children marries a spouse whom the children dislike. Then, when the person dies, the children and the spouse get locked in a bitter controversy in court.
It’s best if you can avoid this, and not play favorites with family members. If you have children, and you marry someone, it’s not a good idea to write your children out of your will and leave all your property to your new spouse. It’s also a good idea not to play favorites among your children.
I realize that no one can control their family members, and that not everyone can ensure that their family members get along. If this is not possible for you, you definitely need a good estate plan.
Have questions? Contact the Persaud Law Office
At the Persaud Law Office, we’ve helped many families plan their estates. We’ve created estate plans for many blended families. You need an estate plan that fits your needs. The options I have listed above are general advice; they will not work for all families. (For example, I often advise against prenuptial agreements.) If you have concerns about planning an estate for a blended family, and would like to have an estate plan custom-designed for your needs, contact us today. We’re happy to help.
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