We live in a modern world where blended families are becoming more and more common. A blended family is one made up of two spouses where at least one spouse has children from a previous marriage or relationship. Blended families can also include two spouses, their children, and grandchildren from multiple relationships. Because of the complexity involved in a blended family, proper estate planning is essential to ensure a client’s goals are met.
Spouses used to create what we refer to as the “sweetheart will”, which distributes assets from the first deceased spouse to the surviving spouse, and then to their children upon the death of the surviving spouse. A sweetheart will does not adequately provide for individuals who have been married multiple times and have children from previous relationships for whom they want to provide for. For example, Joe and Molly get married and have 3 children together. Molly dies and Joe gets remarried to Cindy. Cindy has two children from a prior relationship. If Joe and Cindy were to create sweetheart wills, upon the death of the first spouse, assets will be transferred to the second spouse, and upon his or her death, assets will only go to the children of the second spouse. If Joe were to be the first to die, his children would effectively be disinherited. Joe and Cindy may instead want to provide for all five children in both of their wills, or in the alternative, ensure that each spouse’s assets go to their children from their prior relationship.
To make matters even more complicated, under New York State law, a surviving spouse has an automatic right to take a one-third share of their deceased spouse’s estate. This is something to consider when deciding what type of plan to have and who you want to provide for. Additional considerations should be given to the likelihood of an estate plan being contested, since members from different families may be involved and, may not be happy with the new relationship.
As elder law attorneys, we are always thinking ahead and how to protect assets down the road from Medicaid. If there is a good chance a spouse will need long-term care in the near future, we will want to protect any funds that may affect eligibility. Therefore, a transfer of all assets to a surviving spouse may not be the appropriate plan under these certain circumstances.
Beyond the blended family, similar issues may arise in non-traditional family situations, such as partners who decide not to get married; spouses with no children, but instead have close friends they want to provide for; and those who have a desire to leave assets to pets, charities, or the like.
A family can come in all different shapes and sizes. It is therefore important to meet with an Estate Planning and Elder Law attorney to discuss your specific goals and come up with a creative way to accomplish the best estate plan for you.
- Michal Lipshitz, Esq. and Nancy Burner, Esq.