How to Do a Will When Your Spouse Is Divorced With Adult Children?

by Michael Butler

If your spouse has adult children from a previous marriage, you might be concerned that your property will eventually go to your spouse's children and not your own descendants. This is a common concern. You can plan to minimize this risk. However, it is advanced estate planning so you should speak with an attorney before finalizing your will.

Spousal Share

The specifics are different in every state, but all states have provisions in law that set out a portion of your estate that would automatically go to your spouse. In common law property states, this is normally around one-third of your estate. In community property states, it is normally one-half the community property and some percentage of your separate property. States also have homestead laws that allow a surviving spouse to continue living in a home after you pass away, even if the home is your separate property. You are generally free to distribute the remainder of your assets as you want and, as such, can leave the rest to your descendants.

Life Estates

If you want to give the majority of your assets to your spouse, but make sure he can't later bequeath them to his adult children, you can do so. One way to do this is to grant your spouse a life estate in the property. This allows your spouse to use the property for his lifetime. When your spouse passes away, the property will automatically go to the persons you want it to. You can create a life estate in a will by using specific language, for example, I bequeath [property] to [spouse] for life, then to [your descendants].

Non-Will Options

Many times the best choices for you are only available outside a will; however, you need to address them while you are still alive. Trusts, family limited liability corporations, pay-on-death accounts and gifts can often ensure that your assets go to your descendants instead of your spouse's adult children. All these options can be complicated and the best choices for you will depend on your unique circumstances. Therefore, you should speak with an attorney concerning your options.

Considerations

You should speak to your spouse about how you want your property distributed after you pass. You can often avoid potential problems by prior communication. Your spouse is more likely to carry out your wishes if he knows about them beforehand. If you plan on creating your own advanced estate-planning documents, you need to be aware of the rule against perpetuities, a common law doctrine inherited from England. It basically states that no interest in property is valid unless it vests no later than 21 years after the death of a life in being at the time the interest was created. The rule is very complicated. It means that certain future interests are void if there is any possibility that the interest may vest more than 21 years after the death of a relevant life. Because this rule is so complicated and some states have modified it, it is best to consult an attorney before you try to create complicated provisions in your will.