PROBATE AND BLENDED FAMILIES

William Sweeney

The blended family is one where at least one spouse has at least one child from a prior marriage or relationship. For most, a second marriage or more can be a blessing. But for some they come with special challenges, especially in the area of probate.

Blended families, which are now quite common, come in all different shapes and sizes. For example, the husband may have his own children, the wife may have her own children and the couple may have children together. The dynamics will be different in the case of a husband and wife remarrying while they are younger and have minor children, rather than remarrying when the husband and wife are older and their respective children are all adults. Blended families are a diverse group of people and without proper estate planning can give rise to probate and, at times, catastrophic results.

When you and/or your spouse have children from previous relationships, in addition to their own children together, the situation can become rather complex. The same is true for the assets you and your spouse may have brought into the relationship, as well as those assets you accumulate together. Dying without an estate plan, such as a will or trust, (or intestate) has its own problems.

What is "intestate succession?

Dying "intestate" means dying without a will. Every state has its own set of laws and rules regarding how to handle a person’s estate if they die without a will. These laws typically address which descendants are in line to receive your property, who has priority, and the rights that your spouse would have to your estate. These laws are known as the laws of intestate succession. In California, if you die without a will, your assets will go to your closest relatives. Many factors, such as whether you are a parent, are married or single, and how your property is characterized, will dictate who will inherit your property when you die.

Generally speaking, stepchildren do not have inheritance rights with respect to the estate of their step-parents. However, if they are legally adopted by their step-parent then they have the same rights as a biological child.

The Spouse’s Share in California

In California, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property - as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are some exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage. The size of your spouse’s share of your separate property depends on whether or not you have living parents, children, or siblings. If you do, your spouse will share your separate property with them in a priority of order, children first, parents second, siblings third and so on.

Assume a blended family.

Husband has a separate property home and 4 adult children by a prior marriage. Together, husband and wife have 1 child. If there is no will when husband dies, his community property and 1/3 his separate property goes to his Wife. His 5 children divide the other 2/3 of his separate property! Wife is now in ownership of the residence with her own child and husband’s children from a prior marriage. Typically not a great place to be.

Oh, an just to add to the mix, if you and your spouse are legally separated — but not yet divorced, meaning no entry of final judgment on the dissolution — when you die without a will, your nearly ex-spouse will be entitled to your property. In California, the rules for married people also apply to registered domestic partners.

If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.