The increase in divorce rates in the U.S. has resulted in a greater number of blended families. Blended families tend to give rise to unique estate planning circumstances and opportunities. The following should be considered when planning for blended families:
- Estate Plan. This may seem like a given considering the nature of the blog, but it is important to have an estate plan in place. If you die without a will in Massachusetts (known as dying intestate), the Massachusetts Uniform Probate Code will dictate the disposition of assets. In particular, if you have children from a previous marriage, both your new spouse and your children will be entitled to inherit a portion of your assets.
- Prenuptial Agreement/Postnuptial Agreement. A prenuptial agreement is entered into before a marriage and will direct the disposition of assets in the event of a divorce. A postnuptial agreement is a similar document but executed after marriage. These documents are a way to protect assets for you and your family. If you have entered into a prenuptial (or postnuptial) agreement, you need to make sure that your estate planning documents comply with the terms. For example, suppose the prenuptial agreement provides that in the event you predecease your soon-to-be spouse, they are entitled to receive the marital home. Then you need to make sure that your estate planning documents ensure that they will receive the home, regardless of how it may be currently titled. Failure to do so may mean that they have a claim against your estate when you die.
- Divorce Agreement. As with a prenuptial or postnuptial agreement, your estate planning documents must comply with any divorce agreement you may have with a former spouse. This may mean including provisions to provide for your former spouse or provisions to ensure that your children (from your prior marriage) are provided for after your death.
- Family Dynamics. Family relationships can be unpredictable and difficult to navigate. You may find that your children have a good relationship with their stepparent. However, such a relationship may erode over time, particularly after a death in the family. It is important to consider family dynamics when completing an estate plan to ensure that your interests are achieved, and those you intend to benefit are protected after your death.
- Modifying Estate Plans. Wills and revocable trusts are commonly used in estate planning and may be amended and revoked during the creator’s lifetime. You and your spouse may decide that after the death of the surviving spouse, you both intend to treat all children equally regardless of whether they are your biological children or those of your spouse. When the first spouse dies, however, there is nothing to preclude the surviving spouse from modifying their estate plan to benefit only their own children after their death. An experienced estate planning attorney can work with you to draft an estate plan that protects the interests of your children if you predecease your spouse.
- Independent Fiduciaries. As discussed above, family dynamics can be difficult to navigate. This extends not only to the disposition of assets but the appointment of fiduciaries as well. To minimize potential conflict between a surviving spouse and your biological children, you may consider naming your spouse and a biological child as the personal representatives of your estate and the trustees of your trust. Alternatively, you may wish to name an independent individual (or corporate fiduciary) to serve as personal representative and trustee, either with a family member (spouse and/or child) or independently. An independent fiduciary can help to minimize potential conflict by approaching situations with an unbiased perspective.
There are many factors to consider when planning for blended families. It is important to meet with an experienced estate planning attorney to ensure that your intentions are captured in your estate planning documents and your beneficiaries are protected.
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