LIFE IS COMPLICATED, and so are stepchildren

Second marriages are fairly common these days. And most second marriages come with stepchildren. If you have stepchildren, you should definitely address them one way or the other in your estate plan. That may not be a legal requirement in New Jersey, but it will save everyone a huge headache if something happens to you or your spouse.

What is fair when it comes to stepchildren? That depends on several factors. If the children from the prior marriage are fairly young, and have been raised as though the stepparent were an integral part of the family unit, then maybe the stepchildren should be included in your estate plan. On the other hand, if the stepchildren are independent adults, and they were never a part of the household, then maybe they should not inherit anything from the stepparent.

Another factor to consider is whether or not the biological parent and the stepparent commingled their assets, or have kept them separate, which is more common when the couple married later in life. If the assets were commingled, then a good case can be made that the deceased parent’s biological children and stepchildren should share equally. This is more common when the couple got married earlier in life. Likewise, if the parents’ assets have basically been kept separate, then it seems logical that each parent’s assets should go to their own biological children, and not to the stepchildren. Now you can understand why I say that stepchildren can be complicated.

BUT, WHAT IS THE LAW?

If you have a Will, and the stepchildren are named as beneficiaries, then they will get whatever is left to them in the stepparent’s Will.  If they are not named in the stepparent’s Will as a beneficiary, then they not entitled to inherit any of the stepparent’s estate upon his or her passing. In order to avoid any confusion or conflict whatsoever, I always write in the client’s Will whether or not the stepchildren are included, or not included. Actually, what I typically do is to recommend that the stepparent leave something to the stepchildren, even if it is something as insignificant as a piece of furniture or a few hundred dollars. In that way, the stepchildren cannot claim that they were accidentally overlooked.

WHAT IF I DON’T HAVE A WILL?

Dying without a Will means that you died “intestate.” In that case, your assets will pass according to the laws of intestacy of the state in which the decedent was domiciled at the time of his or her death. If the person lived in New Jersey, but was on vacation in Florida for a few months when he or she passed, the laws of the State of New Jersey would apply, not Florida law.

In New Jersey, like most other states, if you die without a Will and are survived by stepchildren, they get nothing. That is true no matter how much you loved them, or how well they took care of you in your old age, or what you verbally promised them. There are two ways to avoid this from happening. One way, which is not what I would recommend, is to legally adopt your stepchildren. According to the laws of intestacy in almost every state in the United States, your adopted children are treated the same as your biological children for inheritance purposes, as well they should be. The second way is to have a Last Will and Testament prepared by a professional estate planning attorney, and state in the Will exactly what you want to happen to your assets when you pass. That is the basic core of sound estate planning. It is rock solid, and costs a lot less than the legal fees associated with sorting out problems when passing away without a valid, professionally prepared Will in place. Our fees are published, and well worth the peace of mind, not to mention the cost savings associated with administering your estate should you die intestate.

If you want to hear more, or if you have any questions about this or any other topic, please give us a call at 609-654-5489, or send us an email at info@woodendlaw. com. We would be happy to speak with you.