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Using Trusts to Protect Your Children from Your First Marriage

Blended families present challenges for estate planning. Consider the case of a husband and wife, each in their second marriage and each with children from a previous relationship. Let’s assume for the purposes of this example that the husband is the primary earner and has substantially more individual wealth than the wife. If there is no estate plan in place when the husband dies, his property will pass according to Florida’s intestacy laws. The 2015 Florida Statute §732.102 reads in pertinent part:

“(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.

(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.”

What does this mean for our example? If the wife had adopted the husband’s children from his first marriage, Rule 2 would apply. The wife would get everything. In that case, we might expect her to make provisions for all the children equally, but she has the legal right to leave her husband’s natural children out of her will, if she chooses. If the wife has not adopted the husband’s children, Rule 3 operates to give her half the estate and divide the other half equally among those children. Her children get nothing at the moment, but when she passes they will get the entirety of the half she inherited. The husband’s children are effectively barred from inheriting anything from the wife unless she records that intention in a will.

Of course, the husband could have avoided this trouble with the appropriate estate planning tools. By creating a trust to hold his property, he could have arranged for his wife to enjoy those assets during her lifetime, on the condition that the property would pass to his children (or their children in whatever proportions he chose) upon her passing.

If you are concerned about inheritance issues for your family, an experienced attorney at the Charles Law Offices can design an estate plan that fits your unique circumstances.

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