A scenario that is all too common in America is this: a middle aged man and woman marry who each have children from a previous marriage. John Doe has two adult sons, James Doe and Peter Doe. Jane Doe has two adult girls, Jenny Deer and Pam Deer. The second marriage goes great. John and Jane are committed to spending the rest of their lives together. So they go see an attorney who drafts reciprocal wills for them that has the following clause “I give all of my property to my spouse. If my spouse should predecease me, then I direct that my estate be divided equally between James Doe, Peter Doe, Jenny Deer and Pam Deer.” Both parents wanted to make sure that their kids were taken care of, so they determined that the only thing that would be fair is to leave everything to the all kids equally. They think that they have accomplished this goal, but what they really have done is create a potential mess and a decidedly unequal outcome for the kids of the spouse who dies first.
If John dies first, Jane gets everything, as John’s will expressly stated. If Jane never changes her will or remarries, then all four of their children will receive equal shares of what is left when Jane dies. However, there is nothing stopping Jane from changing her will or remarrying. There is no legal agreement in place to ensure that the agreement of the parties reflected in their wills will be carried out after the death of the first spouse. It is perfectly legal for Jane to amend her will and leave everything to her two daughters and completely cut out John’s sons. Frankly, this result is more common that you think. The simple truth is that Jane has never been a mother to John’s kids. They probably call her Jane, not mom. After John died, she probably rarely saw them. Her daughters, on the other hand, were her primary care givers and talked to her all the time. Over time, the well being of her daughters meant more to her than the understanding she had with her deceased husband. Over time, she began to think of what that extra money could mean to her grandkids. So, she changed her will and left almost everything to her daughters – John’s sons were left with a few things to remember him by, but no money.
In this scenario, there is nothing that John’s sons can do. Even though their father may have had land that he wanted to pass down to them or stock or assets to provide for their families, because of inadequate estate planning, they have no legal recourse to receive any inheritance. And before Jane’s daughters get too cocky, if Jane had died first, the exact opposite result could have happened.
I have sat with many families in my office and explained this scenario to them. Each time the parents felt that this outcome was unfair and wanted to guard against it happening. Not because they didn’t trust their spouses, but because they knew how much they loved their own children and didn’t want to have to face the temptation of favoring their kids over their deceased spouse’s kids. With proper planning, however, this entire scenario can be avoided and each spouse and their children can know that an equitable distribution of assets will occur regardless of whether John Doe or Jane Doe dies first.
If you and your spouse have children from a previous marriage, you must plan now to ensure that the fair result that both of you desire happens when one of you dies.