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Estate Planning & Your Blended Family - Werner Law Firm

Estate Planning and Your Blended Family

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: December 31, 2018

Harmonious relations within a blended family can be difficult. The death of a loved one can often raise old feuds and bruised feelings, as well as furnish a breeding ground for new ones. If estate planning and end-of-life documents aren’t clear about the distribution of assets in the event of a newly blended family, a […]

Harmonious relations within a blended family can be difficult. The death of a loved one can often raise old feuds and bruised feelings, as well as furnish a breeding ground for new ones. If estate planning and end-of-life documents aren’t clear about the distribution of assets in the event of a newly blended family, a grieving group of relatives can face protracted and expensive legal battles – right when they are undertaking the tremendous difficulty of facing life without their loved one. It is during these challenging times when preparing ahead of time - through estate planning and securing strong legal guidance early on - will help ensure the smooth transition of assets.

Potential Rights and Benefits of Posthumously Conceived Children

Advancing technology means that, while lives are changing for the better by innovations such as in-vitro fertilization, new problems and ethical questions can arise as well. Now that procedures such as sperm donation and egg freezing are possible, we find ourselves with legal issues surrounding matters of paternity, maternity, and inheritance rights.

Court cases have recently surfaced in which opinions were split over whether an individual, who was conceived following the death of his/her biological father, was legally entitled to the dependent benefits of the father’s Social Security. In 2012, the United States Supreme Court somewhat settled the question by ruling that state law should decide on such matters.

If you are a sperm or egg donor in any capacity, it’s best to consult with an attorney to understand how the potential birth of any offspring after your death might later complicate the inheritance of your naturally conceived or adopted children. In some states, legislatures have enacted time limits on when a posthumously conceived child may receive these benefits.

Others have set different kinds of limits in place. Delaware, for example, stipulates that the parent must provide written consent for a child who was conceived after the parent’s death to inherit. As this varies by state, it’s important to review your status on a regular basis.Also keep in mind that laws may change after you prepare your will and other documents.

Specifying Personal Items of Sentimental Value

Sometimes the most destructive and emotional family fights are over not items of great monetary worth. If tension is in the air over any of your personal items, the best gift you can give your loved ones is your well-designed wishes on the matter. It’s best to communicate about these items as a family, and to declare your intentions to all in an open and honest manner.

But it’s possible that you’re afraid of hurting feelings and dealing with outbursts while you are still alive. In some states, you can choose which items you’d like to go to which person – and to secure your choices in legal documents to be accessed after your death. Documents known as a memorandum of personal property allow you to list which item should go to which person.

Depending on where your last will and testament was drawn up, you can also change your mind as family matters shift. Make sure these papers are prepared by a legal professional who is familiar with the laws in your state. You can settle this delicate matter and continue to enjoy your property, comfortable in the knowledge that you know which person will inherit which specific asset.

Or, consider gifting such items ahead of time so you will have the happiness of seeing your future beneficiaries enjoying an item you both love. This is also an opportunity to pass on details of family history in writing, conversation, or a recorded statement. Also, raising these topics can help you to make decisions about which future beneficiary might want which item.

Prenuptial Agreements

A prenuptial agreement is a document which has become more popular as divorce rates have risen. It is also known as a “premarital arrangement” or a “prenup.” This document clarifies which assets belong to which spouse before the marriage is legalized. It also explains how commonly-held property might get distributed in the event of a divorce.

Some people might be most familiar with prenups as tools of the rich and famous. But many spouses who marry into family businesses or who enter into joint ventures establish them before marriage, too. Most think of marriage and divorce proceedings when discussing prenuptial agreements, yet they can impact estate planning documents as well.

Such laws were enacted in the past to uphold the property rights of widows. These agreements protected women whose husbands had died, and who then had no means to support themselves. In some states, surviving spouses may inherit assets even if the grantor spouse established a legal will which specifically disinherited his or her husband or wife.

In this event, the widow or widower can still take what is called “the elective share,” otherwise known as “the dower share.” This is an option presented to the surviving spouse to take from the estate what he or she is entitled to under state law. It may be as much as one half or one third of the estate, depending on length of marriage and number of children the couple has produced.

All these factors can mean that spouses can inherit more than their first husbands or wives intended. If the signing parties don’t want this to happen, they can block this possibility in a prenuptial agreement. This allows a husband, for example, to leave most of his estate to the children of his first and/or other marriages instead of his first wife, but only if she agrees ahead of time that she will not opt to take the elective share.

Prenups and Estate Planning

Other prenuptial agreements can pre-designate what assets, such as bank or retirement accounts, both parties hold. This can prevent the probate process, ease the transition of a divorce or assist with any other unpleasant surprises that may come up at a later date.

Prenuptial agreements, then, should be part of the estate planning process. You and your spouse can verify post-wedding that your prenuptial agreement is valid. This will protect both parties. Ensure that you are familiar with the laws of your state and check with a legal professional if any updates or clarifications of these documents are necessary.

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