The flip-side of this question is: Will My Children Inherit from My Spouse if I Die First, and My Spouse Does Not Have a Will?
These are common questions these days, with blended families becoming more and more the norm. Many times, parents become as close to their step-children as they are to their biological children, or closer.
There is a common misconception that an individual’s step-children, along with their own children, will inherit their assets if they die without a Will and their spouse has predeceased them. This is not necessarily the case.
Under Florida Law, if a person dies intestate (without a Will), their assets will go to their spouse and [biological] children. In most cases, spouses hold all of their assets jointly, so no assets pass to the children until the last spouse passes. The effect of this is that whichever spouse dies last, that individual’s biological children end up with the assets that belonged to both spouses. This means that if you have children who are not also the biological children of your spouse, and you die first, your children will get nothing upon their step-parent’s death, in the absence of a Will or Trust.
Likewise, if you WANT your step-children to inherit your assets, but don’t have a Will or Trust in place, your assets could end up going to unintended beneficiaries upon your death if your spouse has predeceased you and you have no children of your own. I will illustrate this with a real-life example of a probate matter I handled several years ago: The widow who had passed, we will call her Mrs. Smith, left behind a step-son with whom she was very close. She did not have children of her own, and she had not executed a Will or Trust. The step-son, “John,” compassionately took care of Mrs. Smith until her passing. Mrs. Smith owned a home, which she had owned jointly with John’s father until his passing. John contacted me regarding the disposition of the home. I had to inform John that, under the Florida Statutes, step-children are listed as heirs-at-law only after all “blood relatives.” In other words, if there were any living blood relatives of Mrs. Smith, they would inherit Mrs. Smith’s assets. Sure enough, several distant cousins came forth from all over the country and claimed an interest in the estate. John received nothing. I am certain that Mrs. Smith would not have wanted these cousins, whom she had not even kept in contact with, to receive the home that she had shared with John’s father. But without a Will, our hands were tied – we were bound by the Florida Statutes regarding intestate succession.
This is why it is important to have your wishes memorialized in writing in the form of a Will or a Trust. However, even if you execute a Will, chances are you will leave everything to your spouse, and your children will be named as contingent beneficiaries, in the event your spouse has predeceased you. Or, as stated above, all of your assets are held jointly with your spouse, and they all pass automatically to him/her upon your death, and nothing passes through the Will. Then you are left with the situation mentioned above – all assets pass to your spouse’s beneficiaries or heirs-at-law upon his/her death, and nothing goes to your children.
How do you make sure your assets will pass to your children? The best way to resolve this is to create a trust. There are (at least) two options:
- You can create a joint trust with your spouse, in which you leave everything to each other first, and then to your collective children upon the death of the surviving spouse. It is important to note, however, that special language must be added making the trust irrevocable upon the first spouse to die. Otherwise, the surviving spouse can change the trust after the death of the first spouse, potentially in a way that only that spouse’s children receive the assets, and the first spouse’s children are left out entirely. This may not seem like something that could happen, but I have personally seen it in my practice often, many times due to pressure put on the surviving spouse by their own children.
- You and your spouse can create two separate trusts. This is not usually the preferred route, as it requires that you and your spouse divide up your assets and put your separate assets into your separate trusts. Then, upon your passing, you have language in your trust specifying which of your assets go to your spouse, and which of your assets go to your children (or are held in trust for your children until your spouse passes). These types of trusts work best for couples who already have separate assets from each other, that they wish to safeguard for their children.
Many people are hesitant to create an estate plan. No one likes to think about their own mortality, so it is common for people to put it out of their mind and adopt the “whatever happens, happens” mentality. As explained above, this could result in an individual’s true intentions not being followed.
I highly recommend you contact an estate-planning attorney sooner, rather than later, and get your wishes memorialized in a Will or a Trust. You may be surprised at how quick (and painless) the process is. And once it’s done, it’s done, and you can move on with your life with a sense of relief that your true intentions will be followed.