Blended families are now the norm, not the exception, and with a big portion of marriages ending in divorce, there will be many more in the future. Step-children naturally are part of the mix.
Most blended families are relatively harmonious, but that can change when a spouse dies. At that point, the surviving spouse may feel a real or perceived threat from their step-children over inheritance issues. (You can find tips for dividing certain assets here.)
Good planning can minimize and even eliminate the potential for this type of family discord. This planning potentially includes, for example, creating a revocable living trust rather than drafting a will.
Trust vs. Will
There are a couple reasons why a trust can be preferable when trying to protect your second spouse’s inheritance. First, it’s much more difficult for a disgruntled step-child to break a living trust, because it is normally created well in advance of death or disability. Wills are often signed at the last minute, and in hospital rooms or nursing homes — a situation that can create a suspicion of undue influence (usually from the spouse) in the minds of a family member and lead to a challenge.
Also, it’s more effective to disinherit an estranged child using a living trust because only beneficiaries of the trust have a legal right to set aside its provisions, and a disinherited child is not a beneficiary.
With a will, however, anyone in the near or extended family of the deceased can contest its terms. Any lawsuit threat can be overwhelming for a surviving spouse so eliminating the potential for one with appropriate estate planning is wise.
A living trust can also be better than a will since, once correctly established, the trust assets will flow privately to the surviving family member(s) after the first spouse dies and without those assets having to go through probate. This is not the case with a will, which almost always goes through probate.
Not only does the probate process delay the distribution of assets in a will, but it’s also a public process, which makes it easy for an estranged step-child (or one of the children from the deceased spouse’s prior marriage) to find out who is getting what. These disclosures may encourage that child to contest the will.
Clauses Can Help
Whether you use a living trust or a will to distribute your assets after your death, there are several clauses you can add to either document in order to reduce the possibility of a contest. For example, you can include a No Contest Clause stating that if someone files a lawsuit to undo your estate plan, that individual will get nothing.
Another option is to give your surviving spouse a “limited power of appointment.” This powerful tool will let him or her cut an estranged child out of your plan even if there is no legal challenge to it. It could be used even if the child doesn’t formally file a lawsuit, but is engaged in a sustained campaign of harassment or intimidation against the surviving spouse or another family member.
Careful planning for blended families is essential. But an online will or trust won’t get the job done. The help of an experienced estate attorney (full disclosure: I am one) can be essential.
You can find more on estate planning here and tips to ensure your debt after death doesn’t harm your loved ones here. Also, it’s a good idea to get your free annual credit reports every year so you can make sure there are no surprise debts that might impact your family after your death. (Editor’s Note: You can also get a free credit report summary every month on Credit.com to see where you stand.)
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