Having a will is important for every adult, but especially so if you are part of a blended family. Without a will, your assets will be distributed according to a statutory formula, which may not reflect the way you would want your assets to be distributed.
Intestacy can be complex in blended families
Many couples assume that when one spouse dies, the surviving spouse will inherit all the deceased spouse’s property. They are often surprised to discover that this is not the case when the deceased spouse has children from outside the marriage. Additionally, the characterization of the deceased spouse’s property as separate or community property affects who will inherit the property
In Texas, when a married person dies without a will and leaves children from another relationship, his surviving spouse gets to keep her own one-half interest in the community estate. The deceased spouse’s share of the community estate will pass to his children in equal shares.
Additionally, only one-third of the deceased spouse’s separate personal property will pass to his surviving spouse. The remaining two-thirds of the separate personal property will pass to his children.
If the deceased spouse died owning real estate that is his separate property, the surviving spouse is will receive only a life estate in one-third of that property. The remainder will pass to the deceased spouse’s children in equal shares.
Distribution according to statutory formula can cause unintended results
To illustrate the problems that can result if you have a blended family and die intestate, let’s consider an example. Let’s assume Jack and Jill have been married for 25 years and have two children of their own. Let’s also assume that Jack has two children from a previous marriage.
When Jack dies, he leaves behind the following assets:
- A beach house that he owned before he met Jill.
- A home that he and Jill purchased after they wed and lived in their entire married lives.
- A stock portfolio worth $400,000 to which both he and Jill contributed for their retirement.
The home in which he and Jill lived is community property. But because Jack has children from another marriage, Jill will not inherit Jack’s interest in their home. Although she will retain the right to reside in the home for the rest of her life, Jack’s four children will inherit his interest in their home.
The beach house Jack owned before he met Jill is classified as his separate property. Therefore, Jill will inherit only a one-third life interest in the property. The four children will inherit the beach house. This means she may not have unlimited access to the beach house as she once did, especially if she has a strained relationship with her children or stepchildren.
And what will happen to the stock portfolio that she and Jack spent 25 years saving for their retirement? It will be split in half. Jill will retain $200,000. The remainder will be split equally between John’s four children, which may result in Jill not having enough resources for her retirement.
Do you think this is the way Jack would have wanted his assets distributed?
This article was originally published on March 22, 2010 and updated on April 10, 2023.
