Though I’m a divorce and family law attorney, I occasionally draft simple wills for my prior clients, particularly after divorce when they wish to configure who gets what in the event of passing. In addition to being a lawyer, I’m also a proud stepmom to a high school senior here in New Jersey.
My husband has 50/50 custody and we don’t have any additional children, so I have developed a very close relationship with my stepson. The intersection between being a stepmom and being a lawyer is an interesting one and it means that I’m constantly thinking about how the laws affect me as a stepmom and my cherub of a stepson.
But first, let’s talk about death! That’s fun (lol). Most of us don’t want to think about death or dying, and even I have begun drafting a will and then stopped mid-way— several times.
3 Things about Blended Family Wills You Need to Know (sooner rather than later)
1 – The Real Implications of Dying Intestate
Thinking about death sucks, especially when we are young, happy, living our best lives. We don’t like to think about our own mortality. We don’t like to think about the “what if’s” but the reality is that we will die, and we can have a big choice ahead of us: die with a will (“testate”) or die without a will (“intestate”).
When you execute a will, you get the privilege to specifically pinpoint who gets what, in what percentage, and how (should it be in a trust?), and sometimes even who doesn’t get jack squat (that’s called being “disinherited” and you may want to disinherit someone, it’s okay).
However, when you die “intestate,” without a will, then the courts usually get involved and they look at your lineage, blood-line, whether you’re married or not, and figure out who inherits and who doesn’t.
In that situation, you put your family in the awkward and difficult position of mourning your loss and simultaneously cursing you for leaving them zero direction about whether you want open/closed casket, whether that casket is going to have glitter (yes! it’s real!), whether you wanted cremation, to be turned into a crystal, to be planted with a tree… the list goes on, and of course, what to do with your “stuff” and your estate. In that situation, people who you care about and love, and who you want to provide for after your passing may be left out.
As a stepmom myself, the first thing that comes to mind is, “Wait. what? You mean if me and my husband are jetting off to Key West for a fun weekend and we die in a crash, my stepson would get nothing?” Yep. Zip. Zero. Nada.
2 – Legal Rights of your Stepchild
We stepmoms often hold down the fort. For many of us, we do exactly what we do with our biological kids with our stepkids. We attend and participate in school conferences, doctors appointments, teach them how to drive, maybe even have them on our auto or health insurance, but this doesn’t convey any legal rights to your estate to your stepchild.
If you die intestate with 1 biological child and 1 stepchild, guess who gets nothing? (Yup. The step.) Ugh. Talk about adding insult to injury.
If in your heart of hearts this result doesn’t seem fair, nice, or reasonable it’s time to get to getting a will! (While you’re at it, get your spouse to have one drafted, too!)
In the vast majority of wills I have drafted, the wife leaves her estate to her husband and should the unthinkable occur and he dies in the same common accident or within a reasonable amount of time (broken heart, amirite?!), then the estate would go to your offspring (“per stirpes”, or in equal shares— think, 3 kids, each kid gets 1/3… 5 kids, each kid gets 1/5 ), but this is premised on the “kids” being your biological or legally adopted children.
This is why you are going to want to specifically include, by name, your stepchildren if it is your intention to include them and what and how they are to inherit. For example, you may state that it is your desire and intent that Biological Child 1, Biological Child 2, Stepchild 1 inherit equally- 1/3 to each. Or, Biological Child 1 to receive 50% and Stepchild 1 to receive 25% and Stepchild 2 to receive 25%.
If your children or stepchildren are young, it would be wise to consider a provision that places their share in trust and naming a trustee to manage and govern those finances, making necessary distributions for good reasons like education or medical care or a safe and reliable and reasonably priced vehicle (think Honda, not Maserati) for a teen driver, in addition to specifying ages for lump sum distributions.
It is important to find a knowledgeable and experienced estate attorney in your state so you can discuss your wishes and that lawyer can put those into your last will and testament. If you already have a will, review it and see whether it provides in the way you want it to, knowing that your stepchildren aren’t legally viewed the same as biological or adopted children.
Make sure that if you have divorced, that your will represents your new reality.
3 – Importance of Proactive Spousal Measures
Finally, please know that should your spouse pass, the more specific his or her will is, the better. You should plan to sit down and discuss these issues with your spouse.
What are their intentions with regard to your relationship with your stepchild? Provided the biological parents share joint legal custody, continued contact with your stepkid post-death of your spouse would be at the discretion and with the consent of the remaining bio parent (his or her ex!).
Because there are a number of us stepmoms who have good relationships with our stepkids, but may not have a great one with their other parent, you may have to seek court intervention should you wish to have visits after your spouse’s death.
This could be an uphill battle, and rights and processes differ by state, so be sure to consult with a trusted attorney in the proper jurisdiction.
Use the last will and testament to express that it is your (or your spouse’s) dying wish and your intent that the stepparent have continued contact with the stepchildren. Express clearly and specifically what role the stepparent played in the life of the child (caretaker & provider), that you were important in this child’s life and that you should continue to be an important participant, and that your wish would be for the children to continue to see the stepparent and continue to maintain a relationship.
Uphill battles would be easier to fight with the ammunition of a parent’s last dying wish that a child remain in contact with a spouse who embraced the parental role and was actively engaged in the child’s life.
The bottom line is, if you’re a stepparent, it’s imperative to get a will— not later, now. Speak with a real, live, attorney in the county and state you reside it who can help you develop a last will and testament that expresses your true intentions.