Q&A - In our blended family, how can I make sure that my children aren't deprived of an inheritance by my spouse if I die first?

Under a Simple Will, typically a spouse will leave everything to his or her surviving spouse. If one spouse has already passed away, then upon the death of the other spouse, the estate is left to the children. But therein lays the problem.

In a blended family, if there is a breach in the relationship between the surviving spouse and the children of the spouse who died first, the surviving spouse has the legal right to change his or her Will to redirect the entire estate away from the stepchildren. This effectively leaves the children of one spouse without an inheritance.

The use of a Living Trust or a Family Trust is the best method to prevent this outcome. It allows the surviving spouse to use all of the property and resources to take care of living expenses as long as he or she lives. But then it insures that, on the death of the surviving spouse, the remaining property will be distributed to the children of both spouses as planned.

As long as both spouses are living, they have the full freedom to choose who will receive their property after both have passed away. But once either spouse has passed away, the arrangement in effect at the time of the first death is “locked down.” It cannot thereafter be unilaterally changed by the surviving spouse to redirect the trust property to one set of children or the other, or to a new spouse taken by the widowed spouse. It insures that the carefully laid plans approved by both spouses will be given full effect.

The use of a professionally-prepared Living Trust or Family Trust has the added benefit of avoiding the necessity of probate as each spouse passes away. And, it also substantially reduces, or even eliminates, any Estate Taxes that will be payable upon the death of the spouses.

Daniel Patchin

Benjamin Monaghan