Recently, I have had an increase in reviewing and updating estate plans for widows of a blended marriage.
The most common document that dominates the conversation is their last will and testament. Every one of them asked, “Can I change my will and not include my deceased spouse’s children?”
Most married couples have “simple wills” or what are commonly referred to as “I love you” wills. Generally, they are mirror wills leaving the entire estate to each other, and then to both sets of children.
The wills are executed based upon the promise the couple’s respective children will inherit after the surviving spouse dies.
For example, Spouse A dies first, and everything goes to Spouse B. When Spouse B dies, everything is split equally between the surviving children of both spouses.
The risk involved is that the surviving spouse can change his or her will at any time, even after the death of the first spouse, and exclude the deceased spouse’s children from inheriting.
When Spouse A passed away and Spouse B inherited the estate, the estate became wholly Spouse B’s. Once Spouse B inherits the estate, he or she is free to dispose of the estate in any manner they choose.
So, when clients ask me the question “Can I change my will?” I tell them, “Yes you can.” Because from a legal standpoint, they can. The obligation to share the estate with all the children is a moral one, not a legal one.
Blended families can be complicated, and there are any number of reasons a surviving spouse might want to consider changing the documents to exclude the children of the deceased spouse.
How can you protect against this scenario? How can you ensure your children receive part of your estate?
The answer is simple: Create a trust with specific language to ensure that upon your death, your estate shall be distributed to your children and your spouse cannot change the distributions.
Don’t run the risk of getting caught up in this situation. It is important to discuss your options with a qualified elder law and estate planning attorney.
Rebekah N. Freeman is an associate attorney with Elder Law & Estate Planning Center.