At least four times per year I am contacted by an individual who found himself or herself unintentionally disinherited by a deceased parent. It is very sad when that happens because more often than not there is absolutely nothing that can be done to repair the situation because what happened was perfectly "legal". Here are several ways that can happen:
Leaving Everything to Step-Parent, No Strings Attached: Tom Brady and Mary Brady are married to each other. Tom and Mary Brady each have three children from their respective previous marriages. They have no joint children. Tom and Mary Brady decide they need to do some estate planning, so they download simple will forms from the internet. Each creates a will that leaves everything to the other if he or she is the first to die or to the combined list of children if he or she is the second to die. (Amazingly, I have seen this same situation but each leaves everything to only his or her own children, i.e. "my children", if he or she dies second, meaning the children of the survivor are the guaranteed winners and the children of the first to die are the guaranteed losers. When I pointed this out they admitted that had never occurred to them.)
Tom dies first, then:
- Mary rewrites her will to leave everything only to her children when she dies. Mary then passes and her estate (consisting of the assets she brought to the marriage plus the assets Tom brought to the marriage) is divided up among Mary's children only. Tom's children are disinherited. This is a form of intentional disinheritance on the part of the surviving spouse and unintentional disinheritance on the part of the first spouse to die.
- OR, Mary does not change her will. After Mary passes, Mary's children find her will, which leaves everything to the complete set of combined six children (Tom's three and Mary's three). Mary's children do not like that result so they "disappear" Mary's will and open a probate of Mary's estate as an "intestate" estate (meaning there is no will, or so they claim). Under the laws of most states, if an unmarried person dies his or her estate passes in equal shares to his or her children only (NONE to the late spouse's separate children). Mary's children inherit everything. Tom's children are disinherited. This is a form of unintentional disinheritance on the part of both spouses.
Remarriage - Joint Tenancy: Fred and Wilma Flintstone have three children. Fred dies first. Wilma, Fred's widow, inherits everything pursuant to the terms of Fred's will. Wilma then marries Barney Rubble. Barney has two children. Wilma and Barney do not create any children together. Wilma and Barney agree that rather than Wilma moving into Barney's house or Barney moving into Wilma's house, they will sell both houses and pool the combined sale proceeds and buy a grand new house together. They take title to the new house as "husband and wife", which in their state creates a form of joint tenancy with right of survivorship. Then Wilma dies and Barney becomes the sole owner of the house by right of survivorship. Later Barney dies with no will. Under the laws of intestate succession in their state, Barney's children inherit the house; Wilma's children are disinherited. The same thing can occur with bank accounts and brokerage accounts and other kinds of assets held by a married couple in both names.
Remarriage - Separate Property: Fred and Wilma Flintstone have three children. Fred dies first. Wilma, Fred's widow, then marries Barney Rubble. Barney has two children. Wilma and Barney do not create any children together. Wilma moves in with Barney and keeps her former home as a rental and as her sole and separate property. Wilma is smart enough not to add Barney to the title to her house. But Wilma does not create a will. Wilma dies first. Under the laws of intestate succession in their state, Barney inherits one-third of Wilma's assets and Wilma's children split the other two-thirds. Wilma's children are partially disinherited. When Barney dies, Barney's children inherit everything that is left, consisting of Barney's own assets brought to the marriage plus the one-third of Wilma's estate that he inherited from her.
Do not let this happen to your children! ALL OF THESE OUTCOMES ARE AVOIDABLE WITH PROPER ESTATE PLANNING. Call us today at 931-250-8585 to discuss next steps toward securing your children's inheritance.