Don’t disinherit your kids on accident

This is a common risk in blended-family estate planning, especially when a parent remarries later in life.

What you don’t want:

A parent dies and leaves everything outright to their spouse, assuming the surviving spouse will eventually leave a fair share to the children from the first marriage.

This assumption fails so regularly that it has become a plot worthy of Hamlet. A parent dies, the surviving spouse remarries, and the child watches the family legacy pass into someone else’s hands. 

There are many ways this can play out. The surviving spouse may remarry, become estranged from the stepchildren, spend down the assets, or revise the estate plan later in life.

As a result, the first spouse’s children may inherit much less than expected, or nothing at all.

This can create resentment and even fracture a family.

Some common estate-planning arrangements often fail to address this risk:

Outright transfers to the surviving spouse: Once the spouse owns the assets, they generally control how those assets are used and where any remaining property goes at death.

TOD deeds or beneficiary designations naming the spouse: These can avoid probate, but they do not necessarily preserve an inheritance for the children.

Joint revocable trusts: Depending on how the trust is drafted, the surviving spouse may retain substantial authority to amend the plan or redirect assets.

What can work better:

A continuing trust for the surviving spouse: At the first death, some assets can become irrevocable rather than passing outright to the spouse. The surviving spouse may receive income, principal, or use of property under the trust’s terms, while the deceased spouse can determine (in advance) who receives what remains.

A bypass trust or QTIP marital trust may be used, depending on the family’s objectives and tax situation. The right approach depends on state law, taxes, asset ownership, family relationships, and how much flexibility the surviving spouse should have.

I’m not a lawyer, and an estate-planning attorney is definitely required in this situation.

If leaving assets to your children is important, relying only on the surviving spouse’s future estate plan may not be enough. Put clear, legally enforceable instructions in place with an estate-planning attorney. And then, educate your kids as to their rights under the terms of the trust so that they can take action if the terms of the trust are being violated.