Many of us have heard that the divorce rate for first-time marriages hovers at around 50 percent. While there are fluctuations, peaks and valleys in the number of divorces from year to year, this sobering statistic is essentially true. The divorce rate for subsequent marriages is even higher, with as many as 75 percent of all third (or higher) marriages ending.
These numbers are important not just from a family law perspective and as they concern practical matters like alimony and marital property: with subsequent marriages often comes the blending of families – including children and stepchildren – and the need for comprehensive estate planning that protects all the people you love, whether they are from your first marriage or your fourth.
The “wicked stepmother” pathos
Thanks to such fairy tales as Cinderella and Hansel and Gretel, stepmothers have gotten a pretty bad rap. Clearly, most stepparents aren’t actually “wicked” or “evil.” The relationship between a stepparent and a stepchild can be fraught with tension and the cause of many an argument, shouting match, eye roll, slammed door and exclamation of “you’re not my ‘real’ mom (or dad).”
The fact that a stepparent/stepchild relationship is sometimes a tenuous and difficult one tension is a key reason why those in blended families need to take the step of drafting comprehensive estate plans.
The perils of intestacy laws
Many Americans haven’t put much thought into what will happen to their property once they pass away. Like taxes, though, death is inevitable. We need to take action to ensure that the financial legacy we worked our whole lives to build goes to the people that we love the most. If you die without a will or trust in place, however, this might not happen.
Without an overriding valid estate plan, a decedent’s property passes according to state intestacy laws. Generally, California’s intestacy laws (like those in many other states) will pass assets to the spouse of the deceased first, then to children or parents next if there is no spouse, and so on down biological family lines.
When you have been with your spouse your entire adult life and you both enjoy a good relationship with your children (be they adult or minor), intestacy laws will serve their purpose. They certainly aren’t efficient, and you will need to deal with the headaches and hassles of probate, but at least the property you leave behind isn’t likely to be a point of contention amongst family members.
If, however, you are in a blended family, are just entering into a second/third/fourth marriage, have just gotten divorced from a long-time spouse for whom you still hold feelings of love and affection or are estranged from your spouse but haven’t taken the formal step of divorce yet, these intestacy laws can wreak havoc in the family.
The blended family conundrum
The issue facing blended families without estate planning can be well-illustrated by an example. Paul is in a long-time second marriage. He has a daughter, Ann, from a previous marriage, and she is the light of his life. Ann and her stepmother (Paul’s wife, Debra) have never really gotten along, though, and it has always been a point of contention in the family. Paul has, upon occasion, thought about estate planning, but he has never gotten around to it. He figures that since he’s only 55, he has time to worry about it later. He has made verbal promises to Ann that she’ll be well-provided for after his death, but hasn’t formalized a will or trust to ensure that his wishes are followed.
After a hard day’s work, Paul is tragically killed in an auto accident. Since he has died without a will or trust in place, intestacy laws and beneficiary designations will be the prevailing guides for the dispensation of his assets. Paul’s life insurance was never updated after he and his first wife split, so she is still listed as the beneficiary of his life insurance policies and retirement accounts. The California probate code automatically revokes, upon divorce, beneficiary designations for a former spouse, but it will take time to sort everything out.
Intestacy laws mean that Paul’s assets will transfer to Debra, who is under no legal obligation to share any of them with Ann. This may clearly go against Paul’s expressed wishes, but since he hasn’t formalized them in an estate plan, intestacy laws will rule. Of course, this will do nothing to heal the preexisting rift between Debra and Ann, and the two may never be able to reconcile their differences now.
An ounce of prevention…
The inter-family conflict could have been avoided if Paul had just taken the time to work with an experienced estate planning attorney to draft a will or trust that protected both his wife and his daughter. Wills are vital in subsequent marriages, because they ensure that children from previous relationships are not left out in the proverbial cold by intestacy laws or stepparent/stepchild conflicts.
The only way to really ensure that your last wishes are followed is to have a comprehensive estate plan in place when you pass away, and this holds true no matter if you are leaving behind property worth $1,000 or $1,000,000. For more information about the estate planning process, contact an experienced attorney in your area.