Are biological children entitled to 2nd marriage inheritance?

[Bini]

Are biological children entitled to the inheritance coming from a second marriage? Or does it solely depend on what the Will states? And if the Will excludes certain individuals or a group, can the Will be challenged in court and dissolved? But if that happens, what is the point of a written Will?

[annewandering]

Probably depends on which of the couple dies first.

[Guest]

No one is entitled to inheritance.

[dahlia]

Are biological children entitled to the inheritance coming from a second marriage? Or does it solely depend on what the Will states? And if the Will excludes certain individuals or a group, can the Will be challenged in court and dissolved? But if that happens, what is the point of a written Will?

It's late and I can't think of the answer to the first question off the top of my head, but re exclusion from the will - if a person would normally be considered to inherit (a child, for example), and isn't named in the will, then in most jurisdictions, they can contest the will. This is why you put clauses in the will that will frustrate a person who wants to contest it. It is helpful if you name the person and say why you are excluding them so that it doesn't look like you forgot.

Now, that's the will. There are inheritances that pass immediately upon death or pass outside of the will. Real property goes directly to the heirs. Insurance proceeds pass outside of the will to the named beneficiary. Again, it's late, and I don't recall exactly, but I think retirement accounts pass the same way.

Just because one part of the will is challenged doesn't defeat the whole will. There are many reasons to write a will, but many reasons to also arrange your property so that it is in a trust or passes entirely outside of the will and avoids probate court and becoming public.

[Just_A_Guy]

Inheritance law varies state to state. Generally speaking, a surviving spouse gets an "elective share" of the decedent spouse's estate--anywhere from 1/3 (Utah) to 50% (most other states). This is automatic and is done regardless of a will; the only way around it is to sign a prenuptial agreement prior to the marriage where each spouse specifically waives the elective share.

If Wife (W) marries Husband 2 (H2), who is loaded, and W dies first, H2's fortune passes on to the people named in his will. If H2 dies first, H2's property passes on to the persons named in his will; but if there was no prenup W can demand her "elective share". When W dies, whatever she got from H2 (along with her own stuff) goes on to her beneficiaries as dictated by her own will or by intestacy law. Of course, it's also possible that H2 set up a trust that makes some other kind of provision (example: pays his surviving wife a stipend for her lifetime, and the rest goes to someone else after W has died).

The case law about a child who is deliberately omitted from a will (a "pretermitted child") varies by state. Generally speaking it is possible to disinherit a child, but you need to be very specific as to how you do it.

Again: this is not legal advice; estate planning law varies wildly by state and you should talk to a lawyer in your own jurisdiction for more details.

[Vort]

I assume you mean legally, in which case I defer to JaG. If you mean morally, I agree with Eowyn.

[annewandering]

In Idaho all of the inheritance passes to the surviving spouse without even having to do a probate. If there is no surviving spouse then other inheritance laws take effect.

[Bini]

Eowyn, entitlement seems to be the wrong wording, perhaps, having "rights" is more appropriate? It seems that certain individuals may have more "rights" when it comes to claiming an inheritance than others. Of course, that doesn't mean they do or don't deserve it, and it certainly doesn't mean they get it. But I agree, the idea of self entitlement feels brash and unappreciative.

Dahlia and JAG, thanks for sharing your expertise from a legal standpoint and shedding some light on the issue. So if I may, let me clarify.. If H2 dies first and there is no prenup, then W is able to claim her elective share but can she also change the Will (adding or omitting persons)? I understand you guys can't give legal advice. I'm just a bit unclear on some of this is all.

[Just_A_Guy]

Hypothetically, and depending on the state, W can claim her elective share which is then simply subtracted from H2's property. The remaining property of H2 that wasn't given to W is then probated out through H2's existing will. So the will itself isn't changed; you just have less property that passes through it.

Generally speaking, if H2 made gifts of a particular item to a particular person (in legal parlance, a "specific bequest"--say he gives a ring that's been in the family for generations to a daughter of his--the court will try to honor that gift; but the value of that gift will be taken into account when calculating W's elective share. So let's say I have an estate value of $100K, but $10K of that is a diamond ring that I want to give to my eldest daughter and not my second wife. In Utah, the court will allow the ring to pass to my daughter as specified in my will, so long as my wife receives other property or cash worth $33,333.33 in total.

The trouble is if all my other property is also tied up in "specific bequests" so that it's impossible to pay my wife her elective share without infringing on someone else's specific bequest. Say I have no possessions in this world except for three diamond rings worth $10K each, which I want to leave to my three daughters. There's not enough "residuary" (remaining property after specific bequests) in the estate to pay my wife her elective share; so to some degree my will is not going to be enforced--one or more of my daughters aren't going to get what I had wanted them to have.

Edited May 17, 2012 by Just_A_Guy

[annewandering]

Sheesh it is all barbaric to not just have the spouse inherit it all. I dont get this booting wife/husband out of home etc so that the other heirs get their 'share'.

[Just_A_Guy]

Anne, the main situation it comes into effect is when you have kids through a pre-existing marriage and want to protect their interest from a relative newcomer to the family. Think Anna Nicole Smith marrying that eighty-something oil tycoon.

[annewandering]

But the same law applies to couples who have been married for 75 years too.

[Just_A_Guy]

[Apologies for the delay; lost track of this thread.]

But if the marriage ended in divorce instead of death, she'd only get half--which is what the elective share does (in most states--Utah needs an update because the elective share is 33%, not 50%). Guarantee the survivor any more, and you're basically adding incentive for unhappy couples to commit murder rather than simply get a divorce.

The first spouse to die can still give everything to their surviving spouse by will if they want to; and in my limited experience most happy couples who do not have kids by a prior relationship do just that. Also, at least in Utah, if you die intestate (leaving no will) your spouse will get everything. I was recently in the middle of a divorce case where I represented the husband, wife was leaching him dry (an out-of-control spender), and he suddenly died in the middle of litigation.

She got it all. His siblings were furious.

Edited May 25, 2012 by Just_A_Guy

[applepansy]

There is a solution to all this. Just give it all away before you die. My grandmother did this after my grandfather died. When she died there was nothing left to probate.