Blended Families & Probate

by Feb 5, 2019Estate Planning, Family Law0 comments

Your Spouse May Not Get What You Think!

We all know that not every law serves us well. Let me provide an example of a situation that could occur for you as a result of Arizona Revised Statutes Title 14–2102 and -2103.

Any property that you possess which is not included in a will or trust passes under Arizona’s laws of intestacy. (Property outside of a will or trust is called intestate property).  Now if you have a nice happy family of seven with a wife, husband, and five children, and all five children are children of both spouses, then when one spouse predeceases the other, the living spouse receives all of the separate property of the deceased spouse and all of the decedent’s 1/2 undivided interest in the community property. (Generally speaking, because Arizona is a Community Property state everything acquired during the marriage is considered Community Property with just a couple of exceptions).  This is what most people think occurs and should occur when a spouse predeceases the other. Most people want the living spouse to have everything when they die so that the living spouse is properly cared for.  

Let’s change one fact. We have a nice happy family of seven with a wife, husband, and five children. The difference in this situation is that two of the children are not of the marriage, meaning two of the children are wife’s children from a previous relationship before marriage to her current husband. Thus the husband in the current marriage has three children with wife and two stepchildren. Wife is diagnosed with a terminal condition. She dies without estate planning documents in place, leaving her husband and five children behind. Because not all of their children are children of the marriage, 1/2 of wife’s separate property goes to her children and all of wife’s 1/2 undivided interest in the community property goes to her children.The result for her surviving husband is that, rather than receiving all of wife’s separate property along with her 1/2 undivided interest in the community property, husband simply receives 1/2 of wife’s separate property, if there is any. Wife’s 1/2 interest in the community property goes directly to her descendants, her children. Very little imagination is necessary to recognize the tragic implications for the surviving husband in this situation and the volcanic quarrels soon to erupt with his step-children. Because of the substantial percentage of families that are now blended, the implications are widespread, and provide blended families a critical reason to ensure that proper estate planning is in place to provide for the surviving spouse in the event one spouse predeceases the other, which almost always occurs.

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