Blended Families: Why Pre- or Post-Marital Planning is So Vital

Newsletter | Jun 29, 2017 | Hook Law Center

Were you aware that you are not legally allowed to disinherit your spouse? You can disinherit your children, even your minor children, if you have a mind to do so. However, your spouse has special statutory protections which entitle him or her to a portion of your estate upon your death, regardless of what your Will or trust documentation may say, or how you may have titled your assets prior to your death. It is also irrelevant that you and your spouse may have an oral agreement that, upon the death of the first of you to die, the children of the deceased spouse will get all the deceased spouse’s assets.

When people get married after one or both have families from prior relationships, there is frequently an element of tension between the families of the new spouses. Even if the families are generally supportive of the relationship and get along with one another, concerns can arise about how the finances of the spouses will be handled. Particularly with marriages between seniors, the children of the prior marriages may feel that they should inherit upon the death of their parent, rather than the new spouse. Many times, the spouses themselves may also have an understanding about how they intend to handles their finances, while they are both living and after one of them passes away. Arrangements can be quite varied and can range from essentially independent financial arrangements to a complete commingling of assets. For instance, it may not be unusual for a couple to decide to split the costs of living together but agree to keep their finances separate. The plan may be that, upon the first to die, the surviving spouse will keep what belongs to him or her and the assets of the deceased spouse pass to his or her children. Or perhaps if one spouse does not have significant independent wealth, he/she may want to have a trust set up to help maintain the survivor, with the remainder going to the children of the wealthier spouse at the death of the survivor.

However, unless these agreements are in writing and follow certain statutory formalities pursuant to the PreMarital Agreement Act (Virginia Code Sections 20-147 et seq.), the reality is that, at the death of the first to die, these plans can go up in smoke. (Importantly, this act also applies to post-marital agreements.) The surviving spouse can bring a claim for his or her elective share of the deceased spouse’s estate. As reported in some of our prior newsletters, Virginia’s law on the elective share has recently changed. While the new law is a bit more complicated than the straight one-third under prior law, it is important to understand that the amount to which the survivor is entitled depends on the length of the marriage, reaching the maximum of 50% of the couple’s combined assets at 15 years of marriage. Given the fact that life expectancies have increased, it would not be unusual to have 15-year marriages, even among couples who got married at age 70.

If elective share claims are brought by a surviving spouse, the children of the deceased spouse may feel aggrieved and resentful, especially if they believe that an understanding had been breached. If the families determine to fight out the value of the claim in court, the costs can be quite high for both the surviving spouse and the deceased’s children, and the process for closing the estate can be significantly delayed.

These problems can be avoided entirely if the couple discusses the issues either before marriage or soon thereafter and then discusses their thoughts with an experienced elder law attorney. At the Hook Law Center, we not only advise you about your marital rights and the effect that your proposed agreement would have on those rights, but we can prepare the necessary documents to memorialize your agreement and incorporate it into your estate planning documents. With careful pre-planning you can minimize the possibility of future problems and misunderstandings. In addition, we can advise you on how to best incorporate your children into your plans. Not infrequently, one of the reasons for conflict between a surviving spouse and the children of the deceased spouse can be that the children do not adequately understand why you are making the decisions you are making or feel left out of the process.

Ask Kit Kat – Cagey Lady Elk

Hook Law Center:  Kit Kat, what can you tell about female elk as they age?

Kit Kat:  Well, this is very interesting indeed! It appears from some studies largely done in Alberta and British Columbia, Canada that female elk over the age of 10 years become quite adept at avoiding hunters. They can live up to the age of 20! Unfortunately, male elk rarely survive beyond the age of 5 years, because they are permitted to be hunted. Hunters prize their rack of antlers, as well as their larger size. Hunting of females is usually very restricted. Furthermore, males do not live in groups, while females do. The group allows for somewhat of a physically protective effect, because one or two on the outer fringes can be killed, leaving a large part of the group intact. Those survivors seem to learn from these unfortunate encounters. In other settings, female elk actually do seem to learn to evade hunters. In bow and arrow season, they seek steeper terrain when near roads, especially at dawn and dusk, prime time for hunting. Bow and arrow hunters need to shoot at close range, so steeper terrain makes that harder.

Female elk, known as cows, also move shorter distances with age, further reducing their chance of meeting hunters. All of these conclusions were learned during studies conducted by Dr. Henrik Thurfjell of the Swedish Species Information Center, though his research was conducted in Canada. Daniel Sol Rueda, a researcher from Spain, concurs with many of Dr. Thurfjell’s conclusions. He also comments that, ‘The general perception is that learning is only important for humans, but the truth is that it is crucial for many nonhuman animals.’

Who would have guessed these noble, graceful animals could be so intelligent in surveying their surroundings and actually learning from their experiences? There definitely is more going on in an animal’s mind than one might think from a casual glance! (Steph Yin, “As Female Elk Age, They Learn to Evade Hunters,” The New York Times, Science section, June 15, 2017)

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