Alexandria, VA Estate Planning Blog

Wednesday, November 11, 2009

Avoiding Unintentional Disinheritance

Blended Families (a child or children from a prior marriage/ relationship)

A blended family is a family where one or more spouses, life partners, or significant others (hereinafter spouses) have a child or children from a previous relationship. Estate planning for a blended family can become very complex. Generally each spouse desires to provide for the surviving spouse upon their own death. However they also generally desire that their own children do not become disinherited.
That can be the tricky part. How do you provide for the surviving spouse and also ensure that your children do not become disinherited?

A child may be disinherited in a number of ways, including but not limited to the following:

• Intentionally (e.g., Surviving spouse creates a new will or trust and expressly disinherits them)
• Accidentally (e.g., Surviving spouse’s will or trust is declared invalid, or lost, and the state statute disinherits them. Most intestacy statutes exclude non-biological non-adopted children. Adopted children may be excluded in common law jurisdictions)
• Remarriage and Divorce (e.g., Surviving spouse remarries, then subsequently divorces, and the new spouse becomes entitled to your child’s inheritance via the equitable distribution of property during a divorce proceeding)
• Remarriage and Death (e.g., Surviving spouse remarries, then dies. Despite what is written in the will, trust, or contract, the new spouse may become entitled to your child’s inheritance via the elective share statute. The elective share refers to the right of a disinherited spouse to receive a portion of a deceased spouse’s estate.)
• Fraud (e.g., Surviving spouse’s mental faculty diminishes and your child’s inheritance is swindled by unscrupulous predatory persons.)
• Lawsuit (e.g., Surviving spouse gets sued and must use your child’s inheritance to pay the plaintiff and his attorney.)
• Government Seizure (e.g., Surviving spouse needs governmental benefits, such as Medicaid, and must spend down your children’s inheritance before receiving benefits.)

With proper planning, an estate planning attorney can work with blended families to develop a plan that provides for the surviving spouse and protects the deceased spouse’s children. Contact us today and let a knowledgeable estate planning professional go to work for you.

Authored by Luke Anthony Lenzi, Esquire

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