Lynn Brenner's Family Finance

Can My Husband Disinherit His Kids From His Previous Marriage?

Q: I have been married for 16 years. My husband and I have four kids. He also has two older children from a prior marriage. We want to leave what we have for our own four children. How can we protect our life insurance, homes and other accounts just for our four children? We don't want the kids outside our marriage to benefit from our assets if anything happens to us. – DV, New York

 

A: If your husband really wants to disinherit his two older children, he can do it by leaving them out of his will, naming other beneficiaries on his life insurance and retirement accounts, and making you the joint owner of your houses and other financial accounts.

There's nothing illegal about this. No law requires parents to leave anything to their kids.

But you'd be wise to discourage him from following through on this plan.  

There's much more than money at stake. To disinherit a child is to deliver an irrevocable emotional blow.

And your stepchildren won’t be the only victims. Your own four children will eventually witness the pain their father has caused. Are they likely to think better of him for leaving nothing to their half-siblings?

A more generous alternative would be for him to leave them a small legacy and a loving letter expressing his hope that they will understand that it couldn’t be larger because he had to provide for a surviving spouse and four younger children. 

 

I'm Getting A Divorce. What Happens If I Die Before I Get A New Will?

Q: My wife and I are separated and will soon get a divorce. What's the fastest, easiest, and cheapest way for me to get a new will? And what happens to my assets if I die while I’m still married?  -- JA, New York

                                                           

A:  Stay healthy. 

As long as you're married, New York law entitles your wife to one-third of your estate, no matter what your new will says, unless she waived that entitlement in a prenuptial or postnuptial agreement.

 Of course, the law cuts both ways: If she dies while you’re still married, you're entitled to one-third of her assets.

 Most states have similar laws: As a matter of public policy, states don’t let citizens disinherit their spouses. The reason: When you die, the state doesn’t want to your surviving spouse to be forced to seek public assistance. In other words, these laws are really intended to protect the taxpayer.

 The quickest and cheapest way to get a new will is to do write it yourself. This only works if you use the right legal forms and complete them correctly. A good book that tells you which forms to use and provides clear instructions about how to fill them out is Nolo's Simple Will Book by attorney Dennis Clifford, which sells for about $30.

 But if your situation is at all complicated, you should seek legal advice. Ask your friends, relatives, and tax accountant if they can recommend an estate lawyer. When you have a short list of names, look them up in the Martindale-Hubble Law Directory at www.martindale.com. It provides biographical information, addresses, telephone numbers and links to their websites.                                                                         

Call the likely candidates and ask for a consultation. Ask if there's a consultation fee; sometimes there is, sometimes there isn't. (If there is, ask if it will be subtracted from the attorney’s total fee, should you hire him or her.) Some lawyers mail you a questionnaire to fill out and bring with you.

 This initial meeting doesn't commit you to anything. It's a chance to describe what you want to accomplish, hear what the lawyer recommends, and learn what he or she charges.

 A basic estate planning package includes will, a health care proxy (in which you name someone to make your medical decisions if you’re incapacitated) and a power of attorney (in which you name someone to handle your financial affairs if you can’t do it yourself.)

 Any lawyer you decide to hire should give you a written statement that explains what he or she charges and what services you can expect for that fee.