Children vs New Spouse

If you’ve been married more than once, you should be aware of the complications that may arise with your estate. One of the most common estate issues to be brought before a surrogate judge involves children from the first marriage versus the second (or third or fourth) wife.

The children rarely believe that the wife who is not their mother should receive a major portion of the estate and the wife often loses her home and security in a battle with the children.

Sometimes it’s the wife who muddies the waters, hiding the will if she discovers that the children will receive a major portion at her expense.

Neither sees the other as a deserving party to the estate and it can become very ugly, especially if the first wife is steering her children into the battle. Suddenly the bitterness of the long-ago divorce is resurrected in a new battle with the succeeding wife becoming the enemy.

The widow is fighting to keep her home and possessions. She is fighting to prevent having everything sold out from underneath her. If the children claim a portion of the estate, unless there is a bank account or other liquid assets big enough to pay off the children’s claims, the widow is forced to sell her furniture, home and car to pay off the children.

On the flip side, the children see themselves as having shared decades with their father versus just a handful of years by the new wife. The children perceive a fair division to be one that would give them the bulk of the estate with a small payout to the wife for her few years of service versus their decades of love and loyalty.

It gets even more complicated if the current wife also has children from a previous marriage. All of your combined assets by her estimation should also belong to her children. You may have raised the children as your own or you may not have met them until they were adults. Either way, complications can arise, especially between your biological children and your current wife’s children.

Even with a will, the various parties may drag it into court with the hopes of overturning the will. Surrogate judges rule on such cases every single day and the truth is that everyone is deserving in their own right and your wishes can get lost in the shuffle.

What can you do to prevent an estate battle that will devastate your wife and create an all out war between your current wife and your children from a previous marriage?

The first thing you should do is revisit all of the assets you had before you got married. If you opened bank accounts in your own name, the bank likely asked you to designate a beneficiary for the accounts. You may have chosen your children. If you pass on without changing that designation, all of the money in the bank accounts will go to your children. If your wife relies on that money to pay the mortgage, utilities, etc. she may be forced into foreclosure or bankruptcy unexpectedly.

Stocks, bonds and life insurance policies also appoint beneficiaries when you open the accounts so you should update the designation to reflect both your current wife and existing children.

Another issue is the payment of your funeral. Ideally you should have an insurance policy to cover the costs of your funeral with the funeral home itself as the beneficiary. If you appoint your child or wife as beneficiary with verbal instructions that this policy is to cover your funeral, the beneficiary can easily ignore your wishes, take the money, and force payment of the funeral from another source.

Your household possessions will also come into play. Do not assume that your wife automatically keeps everything in the house. Do not assume that your wife will honor your relationship with your children or that they will honor your relationship with your wife. Spell it out in your will as clearly as possible and choose an unbiased executor to implement the will. Leave a copy of the will with your chosen executor and attorney to ensure that it doesn’t mysteriously disappear.

You might also consider making a videotape spelling out your wishes. Most digital cameras today offer the ability to make short movies with sound. This gives you the opportunity to tell people you love them and say goodbye. It also allows you to solidify your will making it harder to overturn in court.

Give a copy of this video clip to your attorney, attach the video to every copy of the will and make sure that at least one unbiased person has a copy of both. Make sure to announce the date, especially if you’ve changed your will and there are multiple versions floating around.

If your estate includes items you owned prior to your current marriage that you want your children to have, such as a family heirloom passed down from your grandmother, specify in both your will and on the video who you want such heirlooms to pass on to.

Consider putting some of your assets into the names of the beneficiaries themselves while you are still alive. If you bought a car for your wife, make sure she is named on the title. Consider doing the same for stocks and bonds. Talk to an estate attorney about how your house is titled.

Getting advice from the right type of attorney can make all the difference if a battle ensues. Estate attorneys deal specifically with estate battles every day and they know better than anyone what can happen and how you might avoid it.

Don’t wait until you are in your golden years to address these issues. Changes made within a few months of your death can be argued in court and overturned. Even turning a bank account into a joint bank account can be overturned by a judge, putting the account back into the general estate for full division if it’s done within a few months of your death.

Let your loved ones mourn you in peace. Protect their memories of you from an ugly estate battle. Get advice from an estate attorney on how to title all of your assets. Choose an unbiased executor who is not also a beneficiary. Update your will and beneficiary designations and record a video to solidify your wishes. Put the will and the video into the hands of several trusted people so that you can live with the peace of mind that your loved ones will be taken care of exactly as you wish them to be.

You’re Invited to Call or E-Mail!

If you are considering a will, power of attorney, or trust — or have already made your decision — you’re invited to call or email us. We’ll explain how you can protect your loved ones and your assets. You can call us at (613) 519-0320 or email us using our contact form here.

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