Avoid Probate Disputes Between Surviving Spouse & Kids From Prior Marriage

One area of potential dispute during the probate process is between kids from a former marriage and a surviving spouse. The potential for disputes can be handled with pre-planning.

I might sound like a broken record, but I’m here to tell you that every week or multiple times a week I receive phone calls from either kids or spouses or other family members of people who passed away. Usually there’s some dispute that is developing. And one of the main situations that set up a dispute is when there is a new spouse. Typically the man or the woman were married before. They had children from their prior marriage, and then were remarried. Many times the person who passed away didn’t take into account what their children would receive if he or she predeceased their new spouse.

A typical scenario might happen like this. Typically a will is written where you leave everything to your spouse, and if your spouse predeceases you, everything goes to the children equally. So then for instance, let’s take this man, Jim. He had two kids who are now grown. Jim’s prior wife predeceased him. So he was a widow and then he goes out and marries somebody else. Being a widower, he falls head over heels for this woman and they get married. But he didn’t take into account the assets that he had and whether he wanted to leave things to his children or his grandchildren before he got married. And it was not something that he discussed with his new wife before that time he had a will and in the will he said that he wanted to leave his stuff to his new wife and then, uh, if she would predecease him, then his stuff would be left to the kids.

But that really isn’t what he wanted. He wanted his kids to get something when he passed away, but he didn’t do that. And at that point in time, everything went to the wife and the wife took the money, gave it to her kids, did whatever she wanted to do, and the kids from the prior marriage were pretty aggravated. And this happens, I can’t tell you how many times. So there’s many ways that you can deal with it. You can deal with this situation and the easiest way is a prenuptial agreement and the prenuptial agreement, you can have the new spouse waive any right to the elected share under the estate law in the state. So then they can’t make a claim or an elected or spousal share. The other thing that you can do is you can set up a trust for your kids either before you get married, it’d probably be better before you get married, unless you get approval from your new wife.

I don’t know how you keep your, keep your money and then you can have a fund to trust for the benefit of your kids and your grandkids and things along those lines. Another thing that you can do is you can have life insurance and you can have your kids from your first marriage as beneficiaries on the life insurance policy.

You can also do that with stock accounts or a mutual fund accounts or other retirement accounts. And so that stuff would go outside of the probate process. You might think that if you set up a trust and the trust and your new wife becomes the trustee, but it’s a revokable trust and she has the right to amend the trust that if you, that you have taken care of your kids. But the truth is if she has the right after you pass away to amend the trust, then she can go ahead and amend the trust writing your kids as beneficiaries out of the trust document.

This type of factual scenario will cause the kids to go ahead and get a lawyer and then there will be fighting and it’ll cost money. And that’s not something that I’m sure that you want to do when you’re getting into this new relationship. So the best way to handle it is upfront with a prenuptial agreement and that way it can all be spelled out within the agreement as to what you want and what your spouse or new spouse is going to give up.