Last Will and Testament Issues for Blended Families
Some of the hardest Wills to draft are those for persons with “blended families.” A “blended family” is a family where one or both spouses each have children from a prior marriage.
In a Will for a traditional family (one where the children are children of both spouses), most Wills will leave all assets to the surviving spouse and upon the death of the surviving spouse to their common children. However, using the same distribution scheme for a blended family may not always work. The issue arises when one of the spouses passes away and leaves all of their assets to the surviving spouse. What happens if the surviving spouse then changes their will to exclude the children of the predeceased spouse?
For example, Harry Husband, who has three children from a prior marriage, marries Wilma Wife, who has two children from a prior marriage. Harry and Wilma have Wills prepared which leave all of their assets to each other and then to the children in equal shares. Harry dies and all of his assets pass to Wilma. Wilma then decides to change her Will to leave all of the combined assets to her two children, thus cutting out Harry’s three children from their father’s inheritance. Upon Wilma’s death, Harry’s children will not be happy to learn that they are inheriting nothing from their father.
What could Harry have done to have prevented this? First, Harry could have left some portion of his assets directly to his children upon his death. For example, he could have stated in his Will that 50% of his assets go directly to his children and the remaining 50% be left to Wilma. In this way, his children would have inherited their share at the time Harry dies guaranteeing their inheritance. The problem with this method is that Wilma may not be able to continue to live receiving only 50% of Harry’s assets.
Another alternative would be that Harry could have left his assets in a trust created in his Will for Wilma’s support during her life and upon her death the remaining balance, if any, to Harry’s children. In this way, Harry could have provided for his wife during her life and his children would inherit any monies left over after Wilma dies. The drawback to this method is that it requires that a trust be established in the Will which creates a more complicated Will and administration after Harry dies.
Finally, Harry and Wilma could have prepared what is referred to as “mutual” or “contract” Wills. These are Wills that, once made, cannot be changed without the written consent of both parties. Thus, once Harry died, Wilma could not change her Will to disinherit Harry’s children, because Harry did not consent to that change. Even this method is not perfect because this may prevent Wilma from making a legitimate change to her Will after Harry dies.
Persons with blended families should talk to an estate planning attorney about how they wish to provide for both their children from a prior marriage and their current spouse in making a Will.