For those who have finished a divorce, the next logical step is to protect their assets moving forward by drafting a new estate plan, like a living trust. Divorce usually dissolves any estate plan you made with your ex-spouse. Afterward, you must make important legal changes to ensure you properly account for your belongings and loved ones in the future. Many divorced people meet others in similar situations, fall in love, and get married. This results in a blended family, with stepchildren living all under one roof. Blended families are becoming increasingly common in the United States. Given this, it is especially important to apply effective estate planning strategies to ensure both sides of the family are provided for, while also accounting for the loved ones you prioritize most in the future.
Ensuring Your Assets Pass to Your Own Biological Children
This is a common fear of many clients who attempt to create an estate plan for a blended family. The fear is that if a person passes, their assets might go to the step-children, and not their own biological children. They also fear that the surviving step-parent will leave the surviving biological child with nothing, and will spend assets for their own biological children’s benefit.
To avoid this, attorneys can prepare a legal trust to safeguard assets and ensure that specific distributions of assets are received by the surviving biological children. A person unrelated to the surviving step-parent can also be appointed to ensure the surviving biological child receives the gift. This is not within the discretion of the surviving step-parent. This means the surviving step-parent can be isolated and will not have a say on all of the assets available for distribution. Of course, this depends on what assets are available and what assets were a product of the person’s new marriage or old marriage.
Guardianship Designations Do Not Override Court Orders or the Best Interests of the Child for Custody
In a legal will, you may specify the preferred guardian of your children once you pass. Many people will try to name their new spouse, who is a step-parent to their children, as their preferred guardian of their child once they pass. Despite this being their preference, the law may prohibit designations of guardianship to step-parents if the child’s biological parent has existing court orders for custody over their biological child. The same is true if it is within the children’s best interests to be placed in the care of the surviving biological parent. Simply put, a biological parent will, in many cases, take priority as the guardian of their biological child if the other biological parent passes. This is true if it is within the child’s best interests.
Think Critically as to Whom to Name as Your Agent for Power of Attorney Documents
In a blended family, it is not uncommon for adult children to live in the household with their parents. Standard documents in an estate plan include an advance healthcare directive. This document authorizes someone else to make medical decisions on your behalf when you are incapacitated. It is a difficult decision, but the law does not require naming your spouse or your biological child for these important designations. Perhaps the person you name should be someone less emotionally involved. Someone else may better manage their emotions and make informed medical decisions on your behalf. Alternatively, if one of these people works in the medical field, perhaps they would be better suited for the responsibility. At any rate, it is important that the person named will carry out your intentions the best they can when you are unable to articulate them.
Providing for your loved ones should be an absolute priority, as tragedy can strike at any time, without warning. Please contact one of our attorneys for a estate planning consultation to learn more.
