These days, many spouses divorce and remarry. Spouses may have had children with prior spouses or partners. All spouses have different parents and grandparents. It’s natural for spouses to want to provide for their current spouses when they die. Things get complicated when spouses have various heirs. Our Berks County lawyers help spouses plan ahead through effective estate planning. We also explain the rights of heirs when a spouse dies or if, tragically, both spouses die at the same time.
Standard estate planning for heirs with the same biological children
Most spouses prepare essentially identical wills if they are both parents of the same children. These wills:
- Designate who the executor of the will be. Normally, the other spouse is the executor.
- Designate who will be guardians for the children if the children are minors at the time both parents die. If just one parent dies, then normally the other parent raises the children.
- Designate who gets the assets of the estate. Normally, the other spouse gets all or a significant portion of the estate. Spouses may award some assets to their children.
The distribution of assets may start to diverge if there are no children. The spouses then do need to decide what other relatives get the marital home, bank accounts, and other assets. The spouses may agree that the distribution to parents, siblings, and other relatives is the same for each spouse no matter who dies first. Often, the health and financial status of the other relatives is considered in deciding which relatives will receive a share of the estate. The spouses could agree to have different wills – that each spouse will decide which relatives get a share – if the other spouse doesn’t get everything.
Spouses may also agree to help relatives (of either spouse) through trusts and other estate planning arrangements – again, normally depending on if any relative has unusual health or financial needs.
Estate planning when spouses have children from prior marriages or prior relationships
Skilled Berks County estate planning lawyers usually have different recommendations depending on the ages of the children, how many children there are, who the other biological parent is, and other factors. In some families, the new spouse adopts the children of a prior relationship. In many families, the new spouse can’t adopt the children of a prior relationship because the child’s non-spousal biological parent is actively involved in the child’s life.
An example helps illustrate the possibilities. Let’s suppose that Mr. and Mrs. Smith have two biological children and that Mr. Smith also had a child with Mrs. Jones. The question then becomes – what assets, if any, are transferred to the children of the Mr. and Mrs. Smith and what assets, if any, are transferred to the child of Mr. Smith and Mrs. Jones?
- If Mr. Smith wants to provide that all three of his children receive equal shares, Mr. Smith’s will should then make clear that any of his assets that don’t pass to Mrs. Smith on his death should be divided in three equal parts among his three children.
- Mr. Smith also needs to decide whether he should give all of his assets to Mrs. Smith. If he had just had the two biological children with Mrs. Smith, he would reasonably that Mrs. Smith would provide for their two children. However, he might not be able to make that same assumption given the example where he has another child with Mrs. Jones. Mr. Smith then needs to decide if he should give Mrs. Smith all of his assets or give a portion of his estate to the child he had with Mrs. Jones.
- Mr. Smith needs to review with his Berks county lawyer what happens if there is no will. In Pennsylvania. Generally, the intestate laws of Pennsylvania provide that the spouse, Mrs. Smith, will get ½ the estate if there is no will. The remaining ½ is divided into three which means each child gets 1/6th of the estate.
- Mr. Smith also needs to decide who will be the guardian for his children with Mrs. Smith and his child with Mrs. Jones if Ms. Smith or Ms. Jones cannot act as a guardian or if they predecease Mr. Smith.
- Mrs. Smith needs to make some decisions too. She can’t decide who is the guardian for the child of Mr. Smith and Mrs. Jones – unless she has adopted that child. She can decide whether to leave any of her estate (if Mr. Jones dies before her) to just her two children or whether to give any of her estate to the child her husband had with Mrs. Jones.
The estate planning issues may change depending on the health, age, special needs, and financial status of each of the children. The estate planning issues become more complicated if both current spouses have children from prior relationships. In addition to wills, we may recommend lifetime gifts, trusts, and other financial and personal arrangements.
Make the call to an experienced Berks County estate planning lawyer today
At Antanavage Farbiarz, we’ll review with you all the issues you need to consider for the day when you and/or your spouse pass away. This review includes discussing children from prior marriages and other discussing the rights of people other than your spouse and children. To discuss your goals, your options, and the correct documents to protect those goals, contact Antanavage Farbiarz, PLLC, today.