The Wiewel Law Firm

How Estate Planning Keeps the Peace for Blended Families

“Even a close family can have quarrels and confrontations, but these conflicts tend to be more prominent within a blended family.”

With the IRS’s announcement that the first $11.58 million (in 2020) of a taxable estate is free from estate taxes, most people won’t have to worry about paying estate taxes. Therefore, what’s the biggest reason to have an estate plan?

Earlier this year, a survey was conducted at the 53^rd annual Heckerling Institute of Estate Planning, a prestigious legal and financial conference that attracts leaders in the field of estate planning. For the second year in a row, family conflict was identified as the biggest threat to estate planning, reports Investment News in the article “Reducing potential family conflicts.”

Statistics show that there are more blended families in the U.S. than ever before.

The increase in blended families has led to an increase in family conflicts. While open and honest communication is the key to any kind of conflict resolution, it’s particularly sticky when it comes to blended families. For most families, it’s a good idea to talk openly about estate plans, rather than waiting until one of the spouses has passed and explaining to the biological and stepchildren how the assets are being distributed. Discussing the estate plan before anyone dies, at the very least gives everyone a chance to voice their opinions, even if no changes to the spouse’s plans are made.

How do you minimize conflicts within blended families? One way is with a prenuptial agreement, which is executed before marriage and clarifies the financial rights of each spouse, in the event of divorce or death. This is especially useful, when there is a disparity in wealth or age between the couple.

However, not everyone is willing to have a prenup. And even if they do, family conflicts can still crop up. Let’s say Gary and Helen are married, each with children from a previous marriage. Gary wants to give his entire estate to Helen when he dies. If Gary dies first, there’s no legal reason for Helen to give any of Gary’s assets to his biological children.

There are any number of solutions. If Gary really wants to cut his children out of his will, he can talk with them and explain his thinking. He can also have an estate planning attorney include a “no contest” clause in his will. If any named beneficiary challenges the will, they will lose any inheritance and are treated legally, as if they have predeceased the decedent. Gary could also use a revocable living trust, which would avoid the estate being probated and deny the children an opportunity to challenge his will.

A better solution would be to craft an estate plan that benefits both Gary and Helen’s children. Harry’s children could receive a partial outright distribution when Gary dies, with the remaining estate passing to Helen. A trust could be created for Helen’s benefit, but the remaining trust assets could go to Gary’s children when Helen dies.

There are many different ways to resolve this issue with an eye to minimizing conflict among children in blended families. If the parents are truly invested in keeping their children together as a family, it is worth the effort to create an estate plan that cares for the spouses and all of the children. An estate planning attorney can create a plan to accomplish your goals for the entire blended family.

Reference: Investment News (December 9, 2019) “Reducing potential family conflicts”

Blended Families Need More Thoughtful Estate Plans

“When the first spouse dies, the surviving spouse may not remain as close with his or her stepchildren. Small irritations which were overlooked during the lifetime of the spouse who died, may become outright disputes.”

Estate planning for blended families is like playing chess in three dimensions: even those who are very good at chess can struggle with so many moving parts in so many dimensions. Preparing an estate plan requires careful consideration of family dynamics, and those are multiplied in blended families. This is another reason why estate plans need to be tailored for each family’s circumstances, as described in the article “Blended families have unique considerations in estate planning” from The News Enterprise.

The last will and testament is often considered the key document in an estate plan. But while the will is very important, it has certain limitations and a few commonly used estate planning strategies can result in unpleasant endings, if this is the only document used.

Spouses often leave everything to each other as the primary beneficiary on death, with all of their children as contingent beneficiaries. This is based on the assumption that the second spouse will remain in the family home, then will distribute any proceeds equally between the children, if and when they move or die. However, the will can be changed at any time before death, as long as the person making the will has mental capacity. If when the first spouse dies, the relationship with the surviving children is not strong, it is possible that the surviving spouse may have their will changed.

If stepchildren don’t have a strong connection with the surviving spouse, which occurs frequently when the second marriage occurs after the children are adults, things can go wrong. Their mutual grief at the passing of the first spouse does not always draw stepchildren and stepparents together. Often, it divides them.

The couple may also select different successor beneficiaries. The husband may name his wife first, then only his children in his will, while the wife may name her husband and then her children in her will. This creates a “survival race.” The surviving spouse receives the property and the children of the spouse who passed won’t know when or if they will receive any assets.

Some couples plan on using trusts for property distribution upon death. This can be more successful, if planned properly. It can also be just as bad as a will.

Trust provisions can be categorized according to the level of control the surviving spouse has after the death of the first spouse. A trust can be structured to lock down half of the trust assets on the death of the first spouse. The surviving spouse remains as a beneficiary but does not have the ability to change the ultimate distribution of the decedent’s portion. This allows the survivor the financial support they need, giving flexibility for the survivor to change their beneficiaries for their remaining share.

Not all blended families actually “blend,” but for those who do, a candid discussion with all, possibly in the office of the estate planning attorney, to plan for the future, is one way to ensure that the family remains a family, when both parents are gone.

Reference: The News Enterprise (November 4, 2019) “Blended families have unique considerations in estate planning”

Considering Remarriage? Time for a Fresh Look at Your Estate Plan

What are the inheritance rights and what are the key issues?

All major life events should bring some careful consideration of your estate plan and a second marriage is no exception, especially with the possibility of a pre-nuptial agreement, according to nwi.com in “Estate Planning: Planning for second marriages.”

There’s a second opportunity to sign an agreement detailing inheritance rights after the wedding takes place, called a “post-nuptial agreement.” The problem is that once the wedding has occurred and you are both legally married, you might get stuck with some surprises and, well, you’re married. For most people, it’s better to set things out before the wedding, rather than after.

There also may have been dissolution decrees in one or both of the couple’s prior divorces that have requirements which must be satisfied. A spouse may be required to maintain life insurance with the ex-spouse as a beneficiary. This can have an impact on the couple’s estate plan. It is recommended that you have everything discussed up front in the pre-nup.

The rest of the steps are those that should be followed for any estate review.

Make sure that the last will and testament reflects your new spouse. If there are any mentions of the prior spouse, you probably want to remove them.

Verify how all of the assets are owned. Will they continue to be owned by just one spouse, or converted to jointly owned? Does your estate plan have a trust, and if so, are assets owned by the trust? Does there need to be a change made to your trustees?

Many people don’t remember how their bank accounts are titled. Fewer still can tell you who their beneficiaries are on their retirement accounts, life insurance policies and bank accounts. Remember: the beneficiary designations are going to determine who receives these assets, regardless of any language in your last will and testament. Once you die, there is no way to contest that distribution. Review your accounts and make sure that the beneficiaries are up to date.

Part of your pre-nup and estate plan review will be to discuss inheritance rights for any children in the blended family. Do you want to leave assets only for your children, or do you want to leave assets for all the children? It’s not an easy conversation to have, especially at the start of the blending process.

Remember also that blended family dynamics can change over the years. When you review your estate plan next—in three to four years—you’ll have the opportunity to make changes that hopefully will reflect deepening bonds between all of the family members.

An estate planning attorney can advise you on creating or reviewing an estate plan.

Reference: nwi.com (May 5, 2019) “Estate Planning: Planning for second marriages”

Why Didn’t Cinderella’s Dad Plan Ahead?

The tale might be light-hearted, but it is actually a dire position for the daughter.

Proper estate planning by Cinderella’s father could have created an entirely different outcome in that very famous fairy tale, according to The National Law Review in “A Cautionary Fairy-Tale–If Only Cinderella’s Father Had An Estate Plan.”  

To refresh your memory: Cinderella’s mother died, her father remarried and then he died. She is basically a slave to her evil stepmother and stepsisters, in her own home.

Let’s start with what would happen, if there had been no estate plan. If the family lived in Arizona, half of her father’s estate would go to her stepmother, and half of the estate would be given to Cinderella. As a minor, her half of the estate would be placed in an UTMA account–Uniform Transfers to Minors Act. There would be a court-appointed custodian, who would be required to use these funds for her health, education, maintenance and support. The court would have likely appointed the Evil Stepmother, who would not likely have complied with the guidelines. A second option would have been for the money to be placed in a trust for Cinderella’s benefit, but the Evil Stepmother would likely have been named a trustee, and that would not have worked out well either.

What Cinderella’s father should have done, was to create a Revocable Living Trust Agreement, stating that certain assets are the separate property of the father (Schedule A), that certain assets are the property of the Evil Stepmother (Schedule B) and that certain assets are community property of the father and the Evil Stepmother (Schedule C).

A neutral successor trustee would have been named—a friend, fiduciary, corporate trustee or perhaps the Fairy Godmother—to oversee the trust. At the death of the father, the trust should have directed that the trust be divided into two sub-trusts, known as an A/B split trust.

The Survivor’s Trust (Trust A) would have gathered all the Evil Stepmother’s separate property and one half of the value of the community property assets. Trust B (The Decedent’s Trust) would have all of the father’s separate property, as well as half the value of the community property assets. 

The neutral successor trustee would either work with the Evil Stepmother or make sure that Cinderella’s share of the Decedent’s Trust was not being improperly depleted. At the death of the Evil Stepmother, the assets in the Decedent’s Trust would go to Cinderella.

Cinderella’s father could have also taken out a large life insurance policy to ensure that she was cared for, with the proceeds to be distributed to an UTMA account, with a neutral custodian or to a support trust with a neutral trustee.

The only way Cinderella could have recovered any assets would have been through litigation, which is the likely way this story would have turned out, if it happened today. It’s not ideal, but if a child has been left with nothing but an Evil Stepmother and two nasty stepsisters, a lawsuit is a worthwhile effort to recover some assets. Assuming that the Evil Stepmother either adopted Cinderella or was appointed her guardian by the court, there would be a fiduciary obligation to protect her, and an accounting of assets at the time of her father’s death would have been prepared.

An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances and can prevent a situation similar to the one that Cinderella faced.

Reference: The National Law Review (Jan. 16, 2019) “A Cautionary Fairy-Tale–If Only Cinderella’s Father Had An Estate Plan”

Second-Marriage Couples Face Estate Planning Challenges

In today’s world it is not at all unusually to have a blended family.

Blended families often face special challenges when it comes to estate planning. Those issues are best approached openly, according to JD Supra in “Seven Estate Planning Considerations For Blended Families.”

Spouses can leave their assets separately and have their own revocable trust. When the first spouse dies, a trust can be established so the surviving spouse has income and even principal. The surviving spouse should not be the only trustee, which would avoid the situation described.

Consider giving children a bequest after the first death. That way, if the surviving spouse needs to use all the funds, at least the biological children will receive something.

Make a joint trust irrevocable upon the first spouse’s death. If spouses sign a joint trust, then draft the trust, so that it becomes irrevocable on the first death.

Give thought to having separate bank and/or investment accounts and name children as beneficiaries, if you want them to inherit your assets. If assets are owned separately, there is a better chance of avoiding a lopsided inheritance or some children being disinherited.

Talk about your funeral plans. Do you want to be buried with your deceased first husband? Where do you want to be buried? Do you want the kids to decide? Avoid a lot of heartbreak by discussing this, as difficult as it may be.

Name a spouse and children as co-attorneys. If everyone works well and plays together, this could give everyone a voice in important decisions. You want to strengthen a family, not fracture it.

Communicate, often. This is not a one-time conversation and should not be swept under the rug.

Check beneficiary designations. These are the forgotten distant cousins of estate planning. People create accounts, name beneficiaries and then often forget about them.

Blended families are always a work in progress and the better you can plan ahead for the death of one of the spouses, the more likely the family will remain a cohesive unit after one parent dies.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and may include a blended family.

Reference: JD Supra (Nov. 14, 2018) “Seven Estate Planning Considerations For Blended Families”

Multigenerational Living on the Increase

Pew Research analysis reports 20% of population living in multigenerational homes.

There are a record number of multigenerational homes in the U.S. and that trend is expected to keep rising, according to a Pew Research Center analysis reported in Financial Advisor Magazine in “How to Address Multigenerational Estate Planning Issues.”  

For some families, it’s college students moving back with mom and dad while they pay off student loans or newly married couples living with one set of parents while they save money to purchase a home of their own. New parents are recruiting their own parents to combine households, so child care and a stronger sense of family is created. In other families, having elderly parents move into their children’s home helps the seniors with aging issues.

In many instances, families add separate living quarters to their existing homes. States are addressing zoning issues that prohibited this kind of construction in the past. 

Pressures created by rising housing costs, housing shortages and demographics have all contributed to this new trend. How to navigate this kind of family “merger” requires a lot of planning, including estate planning. How will the property pass to the next generation? What about siblings who are not involved in the shared housing space?  How should their portion of the inheritance be handled?

There are many ways to navigate the closer relationship with aging parents or childcare needs. Some elect to purchase a nearby condo where parents are living, so at some point the parents can move from their single-family home to an apartment. For others, the parents move to an apartment within the home, so their children and grandchildren can enjoy the larger living space. 

An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances and may include a multigenerational home.

Resource: Financial Advisor Magazine (July 31, 2018) “How to Address Multigenerational Estate Planning Issues”

Blended Family Can Challenge Estate Planning

Second marriage? You’ve entered a brave, new world, when it comes to estate planning.

A second marriage can sometimes create a problem, because the biggest reason that stepparents and stepchildren fight is over money, according to the AARP in “Don’t Split Heirs With Your Estate.”

If you and your spouse are each financially independent and leave your assets to your heirs, you’ll be less likely to run into the big money issues.  However, if one spouse depends on the other for support, assets will be needed for the other spouse’s lifetime. When there’s a big age difference, the children of the older spouse may end up waiting 10 to 15 years for their inheritance.

The couple’s first responsibility should be to their spouses. You can do this through your will, or a prenuptial or a postnuptial agreement. The goal is to make sure that the other spouse has enough money to live on. A surviving spouse does have the right to make a claim to a certain amount of the late spouse’s assets, in the absence of a will or a proper prenup. However, by taking care of this in the will, you can spare each other and your blended family from the time and delay that a claim will take. The award may be large or small, depending upon the laws in your state.

One way to head off some of the anger that may follow a first spouse’s death in a second or subsequent marriage, is to distribute at least a little bit of cash to all of the adult children in equal amounts. It’s not about the amount, but it is a signal that you are aware of them and their needs.

In blended families with good relationships, it would be ideal for children and stepchildren to be treated equally. If there’s a rational reason not to, like younger children who need college education funds, make it clear to all what the thoughts are behind the distribution.

Personal property is another source of conflict within blended families. If first-family heirlooms are claimed by second-family children, the whole family could be headed to court. Create a document that makes your wishes clear about which child should get what possessions and attach it to your will with the help of your estate planning attorney.

If you leave everything to your spouse, there’s no way to be sure your own children will inherit anything. There is a chance that after your death, the ties between children and stepparents could weaken. You may need to leave money for your children in a trust that provides income to the spouse for life.

An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances and may include a blended family.

Reference: AARP (July/August 2018) “Don’t Split Heirs With Your Estate”

Blended Families Can Be Estate Planning Challenge

Can you trust them? If you wonder, then you probably already have the answer.

Multiple relationships and fewer bonds can often lead to some challenges, when it comes to settling an estate, according to the Financial Times recently in an advice column "Should I trust my wife to divide my assets fairly?"

The column discussing a man who was on his second marriage wanted to make sure both of his children received an equal share of his estate. The children were each from a different marriage, so the man was concerned that his second wife might not leave the same amount of money to the child from his first marriage, if he left everything to her first.

The question almost begs the answer: well, if you must ask, then you have your answer.

That is not to say that stepparents can never be trusted to divide everything equally.  However, the real trust factor to be concerned about is not the trust between the husband and wife. The real concern should be the trust between the stepparent and the stepchild. The better they get along and trust each other, the more likely they will work together without fighting over an estate.

It is normally best not to leave things up to trust and there are many different options for making sure everyone in your family is appropriately taken care of, regardless whether they trust each other.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and may include a blended family.

Reference: Financial Times (Feb. 6, 2018) "Should I trust my wife to divide my assets fairly?"

Blended Families Require More Elaborate Estate Planning

The laws in most states have not kept up with the reality of divorce and remarriage.

Most states have retained the concept of people only marrying once and do not reflect the reality of the fact that many Americans divorce and remarry, according to The Wills, Trusts & Estates Prof Blog in "Estate Planning for your Step-Family."

In most states, the spouse will get everything, but the spouse will be under no legal obligation to pass anything on to his or her step-children.

When attempting to deal with step-families, it is vital that you have some sort of formal estate plan. At a minimum you need a will. Even better would be a more elaborate estate plan that specifically includes the names of everyone you consider to be in your family and precisely what you want them to inherit.

It should also include those people you do not consider a member of your family, such as former step-children.

An estate planning attorney can guide you through the process of planning for your own unique circumstances including a blended family.

Reference: Wills, Trusts & Estates Prof Blog (Oct. 7, 2016) "Estate Planning for your Step-Family."

Estate Battles Can Develop with Blended Families

A St. Louis case demonstrates how a blended family can be a challenge for estate planning.

Both millionaires when they married in 1980, Mary Lee and Robert Hermann Sr., who had children from previous marriages, signed a prenuptial agreement aimed at protecting their own respective children.

According to the Riverfront Times in "In Probate Court, a Wealthy St. Louis Family Becomes Bitterly Divided," now there are serious questions about the assets accumulated since they have been married.

Mary Lee began having doubts and wondered whether her individual assets were being used inappropriately and whether joint assets were being used for the exclusive benefit of Robert’s children. When she asked her husband, he responded by giving her a $1 million check.

The check bounced according to documents filed in court.

It is unclear from the report how this case made it to court in the first place. It appears that Mary Lee hired an attorney and that she might want to change her will to leave her assets to her grandchildren instead of her children.

For their part, the children of Mary Lee are arguing in court that her attorney should not be allowed to represent her as they claim she is mentally incompetent and needs a guardian. She denies this through her attorney.

Even though she still lives with her husband and the two get along, her attorney claims that she has considered filing for divorce just so she can get an accounting of the money.

Blended families are anything but easy as this case shows.

An estate planning attorney can help guide you through the challenges of caring for a blended family.

Reference: Riverfront Times (Feb. 8, 2016) "In Probate Court, a Wealthy St. Louis Family Becomes Bitterly Divided"