Divorce, Remarriage, and Estate Planning for Step-Children

In today’s society, the institution of marriage has continued to change and evolve over time.  While there are a number of ways to measure the divorce rate in our country, (with many researchers believing that the divorce rate in America is actually declining) the chances of a marriage’s eventual dissolution may still hover in the 42 to 45 percent range.  This places Americans in the higher end of the divorce spectrum with countries like Russia (52%), France (55%), and Luxembourg (67%).  Comparatively, the lower end of the divorce rate spectrum includes countries such as: India (5%), Jamaica (5%), and The Bahamas (5%), et.al. 

The higher divorce rate makes the existence of blended families more likely here in the United States.  Divorced individuals may re-marry and bring children from previous marriage(s) to form the modern blended family.  More and more, these blended families have become the norm compared to the traditional nuclear family.  With this new family structure comes an added need for proper estate planning if a parent wishes to include his or her step-children in their inheritance plan. 

In the State of Florida, when one passes away without a Will, they die “intestate” and their assets will pass according the statutory laws of intestacy.  For example, Husband and Wife marry with Husband bringing two biological children from a previous marriage and Wife bringing 1 biological child from a previous marriage.  Many years later, Wife passes away before her Husband.  Two years later after his Wife’s passing, Husband passes away without a Will.  Because the Husband passed away without a Will, Florida’s intestacy laws under §732.103 of the Florida Statutes controls how Husband’s assets will be distributed.  The problem with this is that the statute’s guidance may not line up with Husband’s true intentions. 

Under §732.103(1), Husband’s assets would first potentially pass on to his “descendants”.  The word “descendant” is defined by Florida Statute under §732.201 and includes the decedent’s children.  The word “child” is defined under the same statute and specifically states that the term does not include step-children.  As a result, if the Husband passes away without a valid Will, his assets would pass on to his biological children if they are still alive, but not on to his step-child brought to the marriage by Wife.  While this may have aligned with Husband’s wishes, it is often the case that Husband would have wanted his step-child to inherit from his estate.  This may have been either because of affinity for his step-child, or verbal agreement with his dearly departed wife.  If having the step-child inherit under his estate is Husband’s wish, then it is imperative he execute either a valid Last Will and Testament, or alternatively plan for his step-child during his life via a Trust. 

Based on this example it is clear why after re-marriage it may be a good time to have your estate planned by an experienced attorney to ensure your assets pass on after your death exactly in the way that you intend. 

 Author: Matthew D. Pineda, J.D., LL.M., LLMLE

Note: The information in this blog post is provided as a service to the internet community, does not constitute legal advice, and should not be construed as legal advice or legal opinion on any specific facts or circumstances.