For starters, blended families are the most common form of families today.
Whether the remarriage is the result of a death or divorce, your question is a very commonly asked one.
Yes, this scenario can get rather complicated.
Recently, New Jersey 101.5 took up this topic and discussed what children can expect when their father passes away after marrying his second wife.
The article is titled "What to know about a second marriage and an inheritance" and is worth your read.
When someone dies, they typically will have two types of property at death - probate assets and non-probate assets.
Probate assets are those that a person owns alone and without a named beneficiary.
The probate assets will pass according to the terms of the decedent's will.
Under those (very common) circumstances the assets pass according to the state's laws of intestacy.
What about non-probate assets?
These assets include those the decedent owned jointly with another person, like a home or a joint checking accounts. Other non-probate assets are those that designate a beneficiary.
Think life insurance and retirement assets.
Non-probate assets pass to the joint survivor or the named beneficiary by operation of law.
Red flag alert!
Non-probate assets are NOT governed by the decedent's will or the laws of intestacy (unless the named beneficiary is the estate).
In one example cited in the original article, if the remarried father died with probate assets, then his estate would be required to be administered through the probate court in the county of his residence at the time of his death.
Consequently, if the father had a will, then it is "presented" for probate.
The person named in the will as the "executor" can qualify and obtain "letters testamentary" authorizing him or her to act on behalf of the estate.
On the other hand, if there is no will, then an "administrator" is appointed. Generally, the spouse and then the children will have the first right to such an appointment.
In either situation, everyone named in the will and all heirs at law (which include children) must be given notice of probate. They can also request and get a copy of the will, if state probate law does not otherwise require this.
A person can choose to leave nothing to a spouse, but a spouse is typically entitled to claim an elective share.
In many states, the spouse receives one-third or one-half of a decedent's estate. However, states vary in their approaches.
For example, in Kansas the "elective share" of a spouse is determined on a sliding percentage based on the duration of the marriage. A Kansas widow or widower is not entitled to one-half of the "augmented estate" until married for 15 years.
If you are contemplating remarriage or already have remarried, then contact an experienced estate planning attorney to make sure you take care of everyone in your blended family according to your wishes.
So, how do you find an "experienced" estate planning attorney?
First, ask around. Friends, family and other professional advisors are trustworthy sources.
Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").
Third, either way, verify. Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.
In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.
Reference: New Jersey 101.5 (March 29, 2016) "What to know about a second marriage and an inheritance"