Beyond The Will, Client Compass

Perhaps no family structure is more rife with the potential for probate litigation than a blended family. This is why careful planning is so important, as Patricia Malley so wisely advised earlier this month. Without careful planning and transparency (and, unfortunately, sometimes even in spite of careful planning and transparency!), a number of claims may arise after the death of a spouse, between the surviving spouse and the children from a prior relationship. Here are just a few examples:

1. Can I Challenge the Will? Decedent leaves a Will that provides certain benefits for his surviving spouse and certain benefits for the children from his prior marriage. The surviving spouse is not happy with what Decedent left for her. She may do one of two things.
   • She can elect to take against the Will, and claim her “statutory share” of Decedent’s estate; this, of course, assumes the statutory share is more than what he left her in the Will.
   • If she believes her late husband lacked capacity to execute the Will or that the Will was the product of undue influence by her good-for-nothing stepchildren, she may challenge the validity of the Will; if successful, and if there is no prior Will, she would then be entitled to take an intestate share.  More on that next week.  (And note, this option would also be available to the children, if they felt their stepmother was getting too much.)
2. Who Gets the House? Decedent and her husband were happily married for decades. Each of them had children from prior relationships, and each of them treated those children as their own in all respects during the marriage.  Holidays were celebrated together, gifts were made, and never was there a differentiation between “mine,” “yours,” or “ours.” Decedent and her husband lived in the house that Decedent had received in her divorce from her prior husband; the house in which her children were raised.  Decedent and her husband each made financial contributions to the property, but it remained titled in Decedent’s individual name throughout the marriage. The couple’s other assets were modest. At the time of Decedent’s death, she and her husband each had executed mirror-image Wills calling for all property to pass to each other and, if both were deceased, assets would then be divided among all of the children, his and hers.  The problem is, a few years after Decedent died, her husband went and changed his Will to leave all assets to his own children, excluding Decedent’s children and depriving them of any interest in their own childhood home. Is that new Will valid? Probably.  Does that mean Decedent’s children are out of luck?  Not necessarily.  Even if there are not grounds for a will contest per se, Decedent’s children may have claims against their stepsiblings and/or their stepfather’s Estate for promissory estoppel, unjust enrichment, tortious interference with an inheritance, or any number of other creative legal theories.
3. But What Happened to All of Dad’s Money? Decedent was a successful businessman, and loved talking with his children from his first marriage about his investments and business deals. In fact, just a few years before his death, he spoke with them on many occasions about the lucrative sale of some commercial real estate that had been in the family for several generations. Decedent left a Will providing for his residence and his summer home to pass to his surviving spouse, along with a relatively modest lump sum of cash to support those properties; everything else was to go to his children. When he died, however, according to the Inventory produced by the surviving spouse, there was nothing in the probate estate to distribute to the children after funding the gifts to her. After some investigation, the children discovered that the rest of the money – including the proceeds from the sale of the commercial real estate – had been transferred into joint accounts, leaving the surviving spouse as the sole owner after Decedent’s death, and/or into accounts marked “payable on death” to the surviving spouse.  But didn’t he intend for those assets to pass to his children?  Maybe so. Depending on the circumstances, the children could seek to rescind the lifetime transfers on grounds of lack of capacity or undue influence; or, as to the joint accounts, they could seek a declaration from the Court that those accounts were “joint for convenience only”; or, as with the “Who Gets the House” scenario, they could file claims against their stepmother for tortious interference.

Litigation between a surviving spouse and the children from prior relationships can take many forms, and requires careful, strategic, creative, nuanced argument, with attention not only to the finances but also to the relationships at issue: a classic example of where my colleagues and I really earn the name “counselor.”