The following article appeared in Gulf Coast Woman Magazine November /December 2018
In general, Mississippi’s statistics on marriage and divorce mirrors the nation’s average. Almost 50 percent of those who marry will divorce. What I find interesting, however, is that of the majority who get divorced, 80 percent go on to marry again for a second or third time. Of course, some do so after the death of a prior spouse. The point, however, is that second or third marriages create many blended families, in which children from either spouse’s prior marriage, or from their current marriage, all blend together as one family. However, living in blended families means dying in them, too.
It is easy to see why blended families require estate planning to ensure wishes are followed after death.
First, if there is no estate plan, meaning no last will and testament or trust, it can lead to unintended results because the state’s laws of intestacy will control the estate and distribution of the assets. Such laws vary by each state. In Mississippi, the spouse of a decedent who dies intestate will get one “share,” and each child will get one “share,” (with the descendants of any children or grandchildren who “predeceased the decedent” splitting what would have been their parent’s share). However, note that this provides no inheritance for stepchildren.
In my mother’s case, it meant that she ended up not sharing in her father’s estate at all. Her father was married and owned a house when his first wife died at a young age, leaving him with young children. He remarried and had more children with his second wife, with the entire family living in the same house. He died with a last will and testament that left the house and all his possessions to his second wife (my mother’s stepmother) upon his death. She died years later, owning the house, but she did not have a last will and testament at her death. The intestacy laws provided that each of her children would receive one “share,” but nothing for the stepchildren. So my mother did not have any inheritance from the estate, which she felt was not the result that her father initially intended.
Second, if there is no estate plan in place, it can lead to bitterness and fights among family members. The fact that the children have been through a divorce or the death of a parent can cause conflict and emotional issues to arise, especially in times of grief. Sometimes, even when an estate plan has been put in place, the raw emotions cause the children from different marriages to fight, or the children from prior marriages to fight the decedent’s widow or widower.
Take, for example, the estate of the actor and comedian Robin Williams, who died in August of 2014 and left an estate valued at more than $100 million to his children from two prior marriages and his widow. Williams had prepared a trust in which his widow was to be allowed to live in the couple’s home in Tiburon, California, until her death and to receive enough money to maintain the home. His three children from his two prior marriages were to receive his Napa Valley estate and contents, as well as specific items including his memorabilia and awards. A dispute arose, however, over personal items, including some of the 50 bikes and 85 watches he collected. It turned into a disagreement telegraphed to the nation after his widow filed a petition in court before it ultimately was settled. Such a public dispute probably was not what he intended.
Third, many intensely personal issues and preferences arise when a loved one is dying. Even a blended family that has been civil may face challenges when they find themselves in a situation where someone who is a spouse to one person, but mother or father to another, is dying. At those times, it is often difficult to talk about what seems like small matters, like who should get the memorabilia of one’s life. I recall the shock that one client described when she discovered at her father’s bedside, as he lay dying of cancer, that her stepmother was the next of kin and, by default, outranked his children in end-of-life decisions or choices about who could remain in his room at the end. After he passed away, the disappointment and disagreements only compounded on other decisions about the funeral and intensified as she watched mundane but cherished items being given away or discarded. She felt not only a loss of her father, but a loss of her history, after his death.
Therefore, particularly for blended families, it is vitally important for each individual to complete and put in place a healthcare directive to explain who will be the decision-maker for treatment and care in emergencies, at the end of life, during funeral arrangements and even for mundane decisions about who gets the memorabilia. To one person, it may just be a watch or a bicycle, but to another, it may feel like it is all that is left of you for them to keep.
Kathy Brown van Zutphen is an attorney licensed to practice law in Alabama and Mississippi. She focuses on the “elder law” areas of trusts, estates, and conservatorships. Additionally, she litigates lawsuits and represents small business owners as part of her legal practice. You can also reach her at her office: (228) 357-5227.