Q Dear Rick:
I have an estate planning issue that hopefully you can help me with. My situation is I am in my early 60s and on my third marriage. I have three kids from my first two marriages and my current wife has two children from a previous marriage. My current wife and I probably should have had a prenuptial agreement, but we don’t have one. My question deals twofold. First is with my legal responsibilities to my first two children. I have estranged relationships with both of them and at this point in time if something happened to me I would not want them getting anything as I would prefer everything going to my current wife. My second question is do I have any legal liabilities to my current wife’s children? Even though they live with us I would prefer to leave them out. Thanks.
A Dear Roger:
Let’s first talk about the situation with your wife’s children. Since you never legally adopted those children they are not yours and you have no legal obligation to leave them anything in the will. Therefore, you can totally ignore them in your will. In fact, even if you passed away without a will, your wife’s children would also have no rights to anything from your estate. Just by the fact that they are the children of your wife is relatively meaningless. On the other hand, it is different with your children.
With regard to the children from your previous marriage, you once again have no legal obligation to leave them anything. However, it is important that you mention them in the will even though you’re not leaving anything to them. Under our laws there is a presumption that if a child is not mentioned in the will they are considered a forgotten child and a forgotten child does have rights to inherit through the estate. Therefore, if your goal is to make sure your children inherit nothing, it is important that you specifically mention their names in the will and that you have chosen to disinherit them. You don’t necessarily have to say the reasons why you are disinheriting them, but it is important that you mention them in the will so they do not have rights as a forgotten child. Therefore, in doing your will you can choose to ignore your current wife’s children; but, it is important that you mention your other children by name and indicate you are disinheriting them.
Many people disinherit children not because of lack of love and affection but rather, because they feel their child for whatever reason, does not need their money. In those situations, as opposed to just saying that you are disinheriting the child and leaving that as is, I like to put something in the will that says that you are not disinheriting them for lack of love and affection but rather, for financial reasons. My reasoning for this is that even though you don’t legally have to leave an explanation, it may help in preserving the relationship between the other children.
I’ve always believed the main reason you do an estate plan is not to avoid probate or to save on taxes but rather, because you love your family and you want to make things as easy as you can for them upon your death. I believe when you disinherit a child other than for lack of love and affection, for something like financial reasons, it does make sense to leave an explanation. Anything that will help promote family unity is something that should be important to everyone.
One last note, for those of you who don’t have an estate plan, this would be a great time to start the process. Remember, for those of you who don’t do an estate plan, in times of a family crisis, it is your family who will be paying the cost.