Remarriage & Blended Family Protection
What Blended Families Need to Know about California Estate Planning, Remarriage, and Inheritance Protection
Blended families can create a beautiful space for love, support, and the creation of lifelong memories. With unique family structures, however, comes unique legal situations—especially in the landscape of California estate planning. Many blended families with minor or adult children may be surprised to learn that, in the event a parent passes, it is possible for stepchildren to be disinherited (even unintentionally). Without an estate plan in place, you may have far less control than you’d expect over who inherits your assets.
If your family structure falls into one of the following categories, you should review your estate planning options.
- You and/or your spouse have children from a previous relationship.
- You are a single parent planning to marry or cohabitate with a new partner.
- You are not married to your child(ren)’s other biological or adopted parent.
- Your child(ren)’s other biological or adopted parent has remarried.
- You are a grandparent serving as a primary caregiver to your grandchildren.
Common California Estate Planning
Concerns within Blended Families:
If you pass away without an estate plan, under the law, you have passed “intestate.” As such, your assets will be distributed according to a process known as “intestate succession.” The rules of intestate succession vary from state to state. If you live in California and you pass away intestate, your assets will likely be distributed according to the California Probate Code. In effect, this means that the laws of the State of California (not your children) will govern who will receive your assets.
What will happen to your children’s inheritance if you or your spouse passes intestate—that is—without an estate plan in place? What are some common remarriage and inheritance protection strategies for blended families?
California Estate Planning 101:
The Difference Between Separate Property Versus Comingled
or Joint Property
California is a community property state. Generally, in California, all assets that either spouse obtains during a marriage will become joint property, meaning each spouse will be entitled to half of said property obtained during the marriage. This “community property” or “joint property’ principle applies not only to assets gained during the marriage, it also applies to many forms of debt. When a spouse passes, the surviving spouse is generally left with at least half of the community property in the marriage.
One of the only exceptions to this rule is made for gifts or inheritances a spouse receives during the marriage. These assets remain separate property. Keep in mind that separate property, whether obtained before or during the marriage, may become comingled such that a court cannot properly determine its classification as separate property. This may occur if separate property was placed in a joint account between spouses, or if other factors may lead a court to believe that assets were treated as community property. In instances like these, comingled assets may be designated as community property.
Remarriage and Inheritance Protection:
What happens to a child’s inheritance if a remarried parent passes away intestate?
If you pass away intestate, general rules apply in accordance with the California Probate Code. In California, your surviving spouse may be entitled to as much as all of your marriage’s community property, as detailed above, plus up to half of your separate property. In many circumstances, that may leave only half of your separate property available for your child(ren) to inherit.
If you pass away intestate and leave behind more than one child, your spouse’s share of the inheritance may decrease to just one-third of your separate property.
If a new spouse inherits from their deceased spouse, what happens to the new spouse’s assets after death?
Generally, if you pass away intestate and leave behind child(ren) and a spouse, the allocation of inherited assets will take shape as described above. When your spouse passes, your children will not automatically have any new or separate claim to your spouse’s assets if your spouse was not the children’s biological or adopted parent… even if much of your spouse’s assets were originally your property. If you don’t have an estate plan, there is no guarantee that your children will receive any inheritance from your spouse after your spouse’s death.
Stated simply, if you wish for your child(ren) to take more than half of your separate property when you pass, you must create a Will, Trust, or similar estate planning tool to ensure your wishes are carried out. In the above example, a spouse, who may take on the role of a stepparent, can decide to leave nothing to their stepchildren. If your spouse remarries, assets that were originally yours may go to your spouse’s new partner at their death.
Without an estate plan, you may never know who your assets will settle with eventually. Upon your death, your new spouse may decide to stop providing for your children, remarry, and use the assets left to them however they please.
Blended family estate planning surrounding grandparents as primary caregivers:
Many grandparents are the primary caregivers to their grandchildren. If this is you, you should consider your estate planning options. If you pass away intestate, your grandchildren may not receive all the assets you’d like for them to inherit. A well-drafted estate plan is critical to ensuring your children don’t inherit all assets, effectively skipping your grandchildren.
If you are a parent and would like your parents to care for your children if you pass away while your children are minors, you should also consider your options. In California, when a biological or adopted parent passes away and another biological or adopted parent is not available to take custody of the minor children, custody is often granted to grandparents. However, this is not always the case. Many other parties may have a claim to custody over your children, including aunts and uncles. California courts will grant custody of a child to whomever they find would serve the child’s best interests, not necessarily who they think you’d want your children to live with.
In short, if you’d like to:
- Provide for your grandchildren after your death
- Provide for whoever will take care of your minor children when you pass,
- Or designate someone as a guardian of your minor children if you pass,
You should explore your options with an experienced California estate planning attorney.
How to ensure all children and your surviving spouse are considered during California estate planning:
As we’ve discussed, blended families may be surprised to realize that remarriage and inheritance protection strategies often aren’t the “default,” rather, they need to be put in place intentionally through thorough estate planning.
The stakes are even higher when you leave behind minor or adult children. To ensure they are provided for, establishing a Will, Trust, or similar estate planning tool is essential.
Keep in mind that many estate planning strategies are not necessarily permanent, either: while you’re still living and of sound mind, you can often change your estate plan and redetermine where you’d like to allocate your assets.
California Estate Planning doesn’t have to be difficult for blended families. Remarriage and inheritance protection is possible.
Ensuring that your property is distributed according to your wishes is critical to maintaining peace of mind and providing for your loved ones after you pass. If you’d like to discuss your California estate planning options or explore remarriage and inheritance protection, contact Legacy APC at (619) 696-0778 to schedule a consultation appointment.
