The remarriage rate in America is 64%. If you are part of this group, and find yourself in a blended family situation, it is vital that you know what Texas has to say about married persons who die without a will and/or other estate planning. Furthermore even if you were never married to the co-parent, or you will be getting married for the first time, it is important that you educate yourself on what may happen to your child and your estate when you die. One of the missions of Women, Wills, and Wine is to inform women about Texas’s family and estate laws that will have an impact on their legacy planning. The following are…
3 Things Texas Women in Blended Families Need to Know About Estate Planning
Guardianship of the Child
Unless parental rights have been stripped away- extremely difficult in Texas- the surviving parent will get physical custody of the child. If this is not what you would like to happen, you will need to make an agreement with your co-parent. A court will not simply grant a guardianship naming someone other than the surviving parent without some form of consent from the survivor.
Dying Without an Estate Plan- Married with Children Who Are Not Your Spouse’s
If you die in Texas without a Will or other estate planning efforts in place, your spouse receives 1/2 of the community property and a 1/3 life estate interest in your separate property. Your child(ren) will receive the remaining 1/2 of the community property and a 2/3 outright interest in your separate property and the remaining 1/3 interest shall pass to them upon the death of the second spouse. For example, if the deceased spouse was receiving monies based upon mineral rights to real property, the surviving spouse would be entitled to receive 1/3 of the earnings until she or he dies. When it comes to the family home, if it was owned before the marriage (separate property), and the homeowner dies, the surviving spouse will have a life estate interest in the home. This means that the survivor may stay there as long as she wishes. When she either moves, abandons the property, or dies, the interest in the home passes 100% to the original owner’s children. If this is not a scenario that you desire, it is necessary for you to put your plans in writing. That’s one of the things we help you with at our Women, Wills, and Wine events.
Another thing to be careful about in this type of family situation is that even when you do have a plan, it is one that will be executed in the manner you are anticipating. For example, you draft a Will leaving your property to your spouse with the agreement that he takes care of your child before the marriage; your spouse and you get into a car accident; you die; and your spouse dies the next day. If you did not have anything in your Will stating your spouse had to survive you by so much amount of time, the property that you left your spouse would go to his estate/family- not your child from before the marriage. In other words, your in-laws would likely get the property if your spouse did not have an estate plan, and your child would be left with nothing.
Leaving Your Child Large Sums of Money
Another thing that parents needs to consider in planning is in addition to the high likelihood the surviving parent will receive physical custody of the child, he or she is also one of the most viable candidates to be trustee/guardian over the estate you left for your child. If you are uncomfortable with your ex-partner being in control over your financial legacy for your child, you must put your choice for the trustee/guardian of the estate in writing.
Finally, an estate plan with missing or difficult to locate paperwork is useless. In addition to putting everything in writing, it is important to safe guard the information. I suggest keeping hard copies and electronic copies of your files in easily accessible locations. For your hard copies, a home safe is a nice option. Make sure that someone knows that the papers are inside the safe and that he or she has the combination to open it. For your paperless needs, I suggest using the LegacyVault.com secure cloud storage system. I was recently given the opportunity to test out the service in exchange for a review. I was pleasantly surprised to see how much more they have to offer than simple e-storage. Legacy Vault takes the extra step of helping you to organize your estate paperwork into pre-established folders; they also suggest documents to include in your planning folders. I was quite impressed with their system, and I encourage you to test it for free by heading over to their website to register.
If you are in the Houston area, and you would like to attend a Women, Wills, and Wine Family and Estate Law event to help kickstart your planning, please contact us today for information about our forthcoming live and virtual events.