In a second marriage, the children of the surviving spouse win significantly most of the time!

This blog post discusses the overriding harmful effects of defective estate planning upon blended families and how it can be prevented. It is written in active voice meant to get your attention to a pervasive way spouses and children in blended families over-ride estate plans of the uninformed.  The lessons learned here are meant to bring to the attention of the living what happens after death to an estate plan in a blended family. Stating the obvious is meant to be a punctuation mark at the end of a sentence that when you are dead, you no longer can learn.  After your death is when all the dirty work begins on your estate plan.

First a couple of definitions used in this blog post:

• Deceased – refers to the first spouse to die.
• Survivor – refers to the spouse who out lives the Deceased.

Are you in a blended family, meaning you are in a second or third marriage and the both of you have children from a previous relationship?  If so, watch out! If your estate planning documents are not properly drafted, the children of the Deceased will most likely be disappointed, and will be left with anger lasting the rest of their lives. Also, improperly drafted estate plans can cause strife between the Survivor and the Deceased’s children. Is this the intended purpose of your estate plan?  I bet not.

At this point, you may be thinking I have nothing to worry about because my spouse and children will follow what I expect and want. Anyway my family is different than the average American family, or my spouse is different – s/he will not disinherit my children, or all the kids get along with each other, or none of this will occur in my family.  Anyone of these are a huge assumption to be weighing against the future wellbeing of your spouse and your children that can be solved with a few easy well drafted bright line clauses to save an otherwise generic estate plan.

If the attorney you worked with failed to inquire about your family nor discussed with you precautions, you likely received a generic plan. If so, reading the rest of this blog post may be helpful in ensuring your generic plan does not turn into a failed one causing a curse upon your spouse and children after your death.

Below are two typical posts in an ask-attorney-forums such as Justia and Avvo, etc. The inquiries are copied and pasted as-is. The first is center piece of this blog post. The second is just additional proof of how common the lack of planning or poor planning can lead to a family catastrophe.

Dad remarries, stepmom and three adult sons move in, dad dies with a will. Dads son and daughter are not notified stepmom dies house goes to her sons and again we were not notified of anything not listed as heirs last stepbrother died again not notified or listed as heirs he has will leaving house to niece I want my house what do I do.

Another sad story:

Dad dies in my childhood home. He has remarried after mom dies. Stepmom and 3 adult sons move in dad dies. Stepmom and sons remained stepmom dies sons remain I was never notified if anything. One by one sons die. Last step brother dies with will leaving my childhood home to his niece. So on the deed to my house(or house in question). It has my stepmom as the grantor in 1975 and that is impossible due to my dad not meeting her until 1984. Is that legal. My fathers name is wrong on all documents You see dad and stepmoms names are Robert and Roberta. Names are all wrong. What can I do about that?

What this posts says to experienced probate litigation attorneys is, the children who posted the questions are likely going to be disappointed and will carry associated anger with her/him for the rest of her/his life.

Here is how the questions read to the experienced probate litigation attorney:

The Dad’s house was highly likely held as some form of joint tenancy with his second wife. This means after the date of the second marriage, the Dad changed title to the house from himself to him and his wife as joint tenants with rights of survivorship (or community property with rights of survivorship, if they are in a community property state). This means the house, by operation of law, transferred to the surviving wife upon his death. The survivor, then owning full title to the residence, has full rights to give her property to whomever she wanted – likely giving the house to her three sons. Which, as typically occurs in second marriages, the Deceased’s children are disinherited of their parents property and all is given to the Survivor’s children.

This is especially galling to the Deceased’s children. The reason is, all the wealth the of the Deceased brought to the second marriage was accumulated before the marriage. As such, reason follows the Deceased likely want his/her children to inherit after they die, even if the Survivor is provided for.  All makes sense, right?

As one would likely guess, common sense frequently flies out the window when people marry. Emotions significantly supersede reasoning for many couples. The typical and overriding emotion is this: I have to take care of my new spouse to ensure s/he has a roof over her/his head, food in her/his mouth, and can lead a lifestyle to what s/he was used to while I was alive. Who can fault someone for wanting to take care of one’s spouse? This is where reasoning ends, and assumptions begin. Here is the typical assumption or a variant thereof:  I trust my spouse to do the right thing to take care of my children after death.

That assumption, for several reasons, cannot be farther from reality in many families after the death of the Deceased.  No matter how well intentioned each spouse may feel when estate plan documents are signed, after the death of the Deceased, such intentions are flung to the wind.  That is unless spouses receive proper legal counseling in creating sound estate planning documents with clauses that mandate reasonable checks and balances that protect the Survivor from over baring children, while holding the Survivor to his/her word to not disinherit the Deceased’s children.

While creating estate planning documents, most spouses with blended families are not properly counseled to understand the Survivor is ALWAYS subject to her/his children’s influence. As the Survivor ages, most likely her/his children will be the ones who will care for her/him and thus naturally want to reward them. For various reasons, the children of the deceased spouse likely will not care for their mother/father-in-law. The Survivor’s children typically take over paying bills and caring for the property. Assistance from others are valued more-and-more as we age, especially from one’s own children. Additionally, the Survivor’s children are keenly aware of the value of their parent’s property and how the parent’s generic estate plan reads. They then begin to meddle in financial affairs and work towards protecting what they perceive is their “fair share.” The children of the Deceased are seldom considered, or if considered, children of the Survivor often create an informal subterfuge to circumvent lightly armed estate plans.  For example, the typical subterfuge are transfers out of bank accounts titled in the trust to joint bank accounts with the Survivor’s children. The combination of all these factors spell doom for the Deceased’s children; that is unless plans are specifically prepared, and enforced.

You may be thinking great, I got how important this is, but how do I protect my spouse and children at the same time? Before suggesting a solution to protect both, a focused discussion revolving common rough spots that prevent, or at least hinder, the creation of an estate plan to withstand such attacks. This will help you understand the reality of what typically happens when the Deceased dies.

An effective estate plan has two (2) stages, planning and enforcement. In short, planning is the creation of bright line boundaries and rules that sets out what happens when.  For example, within 6 months after death of the Deceased, the Survivor shall allocate to a separate into a trust for the life time benefit of the Survivor all Deceased’s property with remainder going to the Deceased’s children.

The Planning Stage

Let’s dig below the surface about what is going on in the psyche of spouses in a second marriage. At the outset, a spouse, usually the one who comes from lessor financial means, immediately reacts with fear of two (2) concerns:

1. S/he will be left penniless, or at least left wanting for something they are used to in their current life style, and
2. Having to answer to children of the Deceased about finances.

Not understanding there are several workable solutions to relieve these concerns, where a spouses’ resistance is so stiff, the other, with crossed fingers, capitulates and hopes her/his spouse will follow a loosely assembled plan and will be fair. This is unfortunate because what one spouse considers fair is seldom communicated to the other in writing. So, what the one spouse hopes for, will likely not be carried out.

Fears at this stage can easily be relieved when clear solutions are explained on how matters will be handled after the death of the first spouse. The typical concerns of financial wellbeing and freedom from oversight are easily addressed.

Now consider the perspective of the Deceased’s children. Hey, this is unfair! The wealth my parent brings to the second marriage was a result in large part from my other parent working in the relationship.  Now my parent is giving all the money to the new spouse “to take care of her.”  Then when the parent dies, the survivor will resist answering to us because my parent left no safeguards to protect my inheritance attributable to my other parent. My parent surely would want his/her share to go to me! The children’s motivation is now set and likely will cause havoc to the Surviving spouse through answering to children’s increased inquiries to the extreme of badgering.

The Enforcement Stage

Trouble heightens immediately after the death of one spouse. First, the family goes through mourning. The children of the Survivor come to help and console. Depending upon how well the Survivor and the Deceased’s children got along before the death of the Deceased, they too may come to help and console. But, just know there is concern at the back of their heads about their inheritance. If the Deceased’s children did not get along with the Survivor, tensions surely will begin to rise. The children begin to get concerned the Survivor will waste or give away all their parent brought to the marriage. The Survivor on the other hand, does not want to be questioned by the Deceased’s children about what to do with the money and property her/his spouse left behind. The combination of these states of mind is a mighty potion when given will poison the Survivor and Deceased’s children for the rest of their lives.

So here is one suggested solution of several:

When I work with blended families, I teach the lesson my father taught me.  It goes something like this:

If something is important to you, get your intentions and expectations in a signed writing with the person you trust. If that person does what is written, then the writing does not matter. It only matters if the person did not live up to her/his promise.

If the person resists after allowing for reasonable changes, walk away.

While the last part of the lesson is hard to accomplish short of a divorce, a well written contract that “clearly states” what happens when, how the Survivor will be treated, and how the Deceased’s estate will be distributed after the Survivor dies is the first step.  By the way, the contract written about is a revocable living trust. It should “clearly state” something like, my trust share shall be set aside in trust for my spouse’s life. It will pay my spouse income for life and s/he can have access to the principal if s/he needs for certain things like health and lifestyle maintenance.

This all sounds great, but here is the what makes everything work: its soft edged accountability. Rules are set up and enforced that minimizes children’s intrusive conduct, while putting guardrails around the Survivor facilitates the continuation of lifestyle and guides the Survivor to keep her/his promise. This balance between caring for the Survivor and providing for your children can be and are often achieved.

If you truly care about your spouse and children, then get your expectations in writing and make sure your spouse knows, understands, and agrees to abide by them. S/he should also do the same.

In closing, mistakes in estate plans are rarely discovered until after the death of a spouse; that is time when the enforcement expectations arise. The Deceased is not there to see and learn from the mistakes. The Survivor’s motivation to keep her/his promise fades or simply vanishes, and the Deceased children’s concerns heighten. The extra money spent to create a clear and bright line plan is worth everything to your family. Your estate plan is your last act of love to ensure your new spouse and children are taken care of properly. The money spent to create a sound plan with enforcement provisions will go a long way in preventing inheriting attorneys you do not know. If clear bright line rules are not in place, your share of the estate will go to pay legal fees you did not expect.  This alone should be maddening, let along adding unnecessary strife to your family. One could not think of a more terrible departing gift.

This blog post covered only one strategy to address the concerns of taking care of your spouse and children. There are other strategies worth considering.

The author, Kirk D. Kaplan, Esq., CPA, at the date of writing this blog post has 24 years of litigating probate and trust matters. What he has learned in court over the years has guided him on issues such as the one discussed in this blog post to draft bright line clauses toward maintaining peace in blended families, and in the future, prevent unintentional inheritance of unknown attorneys.