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What do you consider "fair" when writing a Will in a blended family with all 4 children grown adults?

Mostthanklessjobever's picture

My DH and I have briefly mentioned having a will written over the last few years.  I'll be honest with you, I've procrastinated out of fear I'm going to get screwed along with my bio children which after reading the law that I would get 1/3 and SD's would get 2/3's I think I'm screwing myself much more with not having any will.

DH has 2 BD's, 21 and 24.  I have a BD 28 and BS25.  All live on their own except SD21 who is still attached to BM.  

We have been together 16 years, married 13.  In all of these years, my DH's actions have always been to protect his own and that does not include myself or my Bio's.  There has been a lot of unfair treatment over the years and while he has gotten a lot better I still see certain things that makes me think in the end I would get the shaft.  

Years ago when he took his job (he's always worked for himself and had no retirement plan), he asked me who was the beneficiary on my retirement plan and I told him he was.  He says "well you would think you would want your kids to be".  I said no, I feel like you should be.  I know why he asked me this because he wanted his kids to be his beneficiary on his policy.  However from what I've read I would have to sign something agreeing to waive my rights as his beneficiary on his 401K which I didn't and he didn't ask.  

Since reading the laws in my state of Virginia that states I would get 1/3 and his kids get 2/3's if we have no will, I am scared to death of him dying tomorrow and I am screwed out of my home and everything else.  Trust me when I say his 2 BD's and their BM would be at my door ready to help me pack and change the locks.  I live in the house that DH and BM built and she's always viewed this still strictly DH and BD's home with her stlll having a say over it.  She lived here 3 years, I've been here 15.

My DH is the bread winner in our marriage and he has paid for obviously the mortgage and most of the bills.  I've obvoiusly contributed in other ways as the wife but in my mind I think he feels like his DD's should be left the majority of things based upon I'm not their Bio Mom and other situations in our life over the years.  He's never said that to me as of yet, but I feel it coming.  

I'm just trying to determine what is fair to me and them.  I want to know that I am taken care of in the event he dies before me, that I can survive and have a roof over my head instead of watching 2 SD's living off what should have been mine to survive while I'm barely surviving to live.  

We do not have any insurance policies which I'm thinking we need to get ASAP along with a Trust.  If he dies before me, I do not want to have to deal with HC BM and the 2 SD's ongoing battle of what they think is theirs which would be everything.  They are both very entitled kids, thanks to both their parents.  

My DH inheritated a small farmette and some money last year where he grew up.  I have no desire for any of that.  However I do feel everything else should be left to me and then when I die it can be split between our 4 children and vice versa if I die before him.  There is a lot of bad blood right now however between myself and SD's.  It's all the typical crap and I finally had to detach from them and that situation.  I've ate so much crap over the years and could not take it anymore.  But even if things were perfect between us I can still see my DH screwing me to save them.  

Please don't tell me to divorce him either, I just want to know what seems fair to me and all 4 of our children.  Just not his children.

I plan to make an appointment with an attorney today so I can see what my legal rights are at this point.

tog redux's picture

Well, I personally agree with how you think it should be done, but what matters is what he will agree to. Meet with an attorney and then the two of you should sit down with one. Find out what he wants to do and then you can plan accordingly, including perhaps getting a job or another job so you can put your own money away. If he's supporting you, you are kind of at his mercy. Though if he has a generous 401K to leave you, maybe the house isn't a big issue. 

Mostthanklessjobever's picture

I work full time but making a lot less than him and he does not have a generous 401k at this point, honestly neither of us do as we started later in life contributing which I am now kicking myself for.  I am constantly drilling into my children's head about making sure they stay on top of their 401k!

ESMOD's picture

I think it may depend on the wording of the deeds.  You are both on the property.. so I think that will mean that you would either have the entire property left to you as "right of survivorship" so you would just outright inherit these properties.. or it may be "joint".. but his "half" would be subject to the inheritance rules which would mean that you would inherit 50% and they would get 2/3 of his half.. and you would get an additional 1/3 of his half.  In these cases, it's not that unusual for people to work out "trades" with the property.. like you might give up your share of the farmette to them outright in exchange for their share of the home you live in.  Again, it depends on wording of the deed.  whether you will get 100% or 50% plus 1/3.

I'm guessing that there may be some way a sale could be "forced" in a situation where you all share some portion.. in that case, you would get the share you were entitled to via the deed split. which if you are both on the deeds.. I am thinking you would get 50% plus 1/3.

Mostthanklessjobever's picture

I just pulled our deeds, two of them are right of survivorship.  We own some land we purchased before we got married that I paid for with my inheritance money that I put in both our names but it's deeded as tenants in common.  So what does that mean?  I looked it up but I'm not sure I understand fully.

ESMOD's picture

If they are right of survivorship.. you will legally get those properties.. they will pass to you and not go through probate. 100% yours.  They may try to have claims to furnishings in the home but the property itself will 100% be yours and they have no legal claim to it... as long as they can't claim you were placed on the deed in some illegal fashion.

ESMOD's picture

I think that you should certainly have steps taken so that you are both comfortable that you would be "ok" if he were to pass before you.

There are a few ways this could be accomplished.  He could outright add you to the deed of the home and the home could legally pass to you automatically without any need to go through probate.  He could also give you rights to live in the home as long as you "need" to.. until death, permanent assisted care elsewhere or you remarry or want to cohabitate with another partner.  At the end of that time, the home could be sold and the funds distributed in some equitable manner.. to his children.. with perhaps some portion also allocated to yours.  I don't think it's unreasonable for him to feel it's fair to give his kids more share since he was the one who paid for the home.. downpayment.. repairs etc.. While you did contribute in other ways to the partnership, you also would have gotten the benefit of living in a home that was paid for for by him all those years.. so it's not like you didn't get any benefit and value and you could theoretically say that since you didn't have housing costs.. you would have had more disposable income to save or spend on your own kids too.

But putting the home into a sort of trust for your benefit would allow him to ultimately provide this inheritance for his kids while still allowing you some level of assurance that you will have a home if he is gone.

His other property... the farmette etc.. was his inheritance, I would be inclined to agree his kids should be getting the benefit of that.. as long as you haven't had some similar bequeath that you put into your joint pot of finances... I think that's fair.  (I do agree with you on your other post though.. he probably should be insisting his daughter pay reasonable rent.... even if it is only for the fact that it is really not fair that he is basically giving one of his kids a free place to live.. the other not?)

But, these things are "real property" and they are not distributed with probate because they are usually legally deeded to pass to certain people and that can be outside probate.  

Life insurance proceeds etc.. ALSO don't go through probate... they are distributed to the beneficiaries..period.  So.. again, a way to ensure you have some level of soft landing if he were to pass would be to have insurance policies that would have you as beneficiary.. 

The things that would be split might be his other posessions.. value of vehicles.. bank accounts etc... (unless the account is joint with you.. then you get it).

I think it is important to stipulate how things will be distributed.. while not always a comfortable discussion, you both need to understand what it will mean if one of you goes before the other.  

One thing I would advise is to NOT do a joint will.. You should each have your own.. there can be stipulations on who would be considered to have passed "first" if you die together.. but it's important for you both to make your wishes known now.. don't wait for someone else to do the "right thing".

I am assuming your kids also have a father.. and that he would be providing for them in HIS will... so it's not like you and your DH are the only ones that would be in the position to leave them something.  I don't think it's unreasonable for you to want to feel you have some security.. and not totally unreasonable for you to want your children to have something from you as well.  You might consider an insurance policy with them as beneficiaries?  

It's kind of a touchy subject... asking your spouse if they will be willing to consider leaving kids that aren't theirs anything when they are gone.  It's not like they technically are entitled to a portion of the wealth he has earned just by virtue of you marrying him.  I guess if you were to claim that you would have been otherwise earning a much better living and would have had more to leave them if you hadn't been providing other support for your DH?... perhaps it's fair to say you and your kids should share in some of the proceeds.. But, if you just happened to "marry well".. I'm not sure that your kids in all fairness should be entitled to inherit a portion of wealth he worked for himself.. and supported all of you in other ways financially.. with a home etc..  Certainly, he should make an effort to see that his spouse is not left in a bad way.. but I'm not sure it follows that your kids should continue to benefit after you are gone.. beyond your ability to save for that purpose.

Again... I would definitely go to an atty that is experienced in family inheritance law.. they may have some creative ideas that would allow everyone to feel that things are being handled fairly.

Mostthanklessjobever's picture

Both of our names are on the properties we own, including the home we live in.  

My children actually do not have a father.  He has been out of their life since small children due to addiction.  My kids also have no grandparents on either side left.  I am literally their own closest living relative.

But aside from that, my biggest concern is that I am able to live if he passes before me and vice versa.  

If my name is own our home, can his children take that or force it to be sold is my biggest concern.  I prefer not to be sitting in the streets homeless.

There is no wealth to speak of, we live comfortably, not pay check to pay check but noting close to extraordinary.

ESMOD's picture

https://www.nolo.com/legal-encyclopedia/joint-property-concurrent-owners....

 

The above link describes the basic three ways your property deed could be written.

Tenancy In Common means you would each own a set share of the property... it would probably be common that the share was 50/50.  This means that you outright are entitled to 50% of the share of that property.  HE is entitled to the other 50% and that 50% is what would go through the probate.. so like in my other post.. you would get 1/3 of his 50%.  His children would share 2/3 of his 50%... you would be majority owner at that point.  I'm guessing a sale could be forced so that they could get their portion of the proceeds... but you would hardly be left destitute without means to find another home at that point.

Joint Tenancy (with right of survivorship) means that 100% of the property goes to the survivor of the two.  you get it outright 100%

The third wouldn't apply in your case since you didn't buy the home together.

If you truly are on the deed in some fashion.. you have rights to these properties.. that will have value after his death.. you would be free to leave whatever wealth YOU have at that point to whoever you want.. including your kids.. or his if you want to do that too.

Mostthanklessjobever's picture

The tenants in common deed I would like changed as it was my inheritance money used from the sale of my parents home to purchase this.  Like his inheritance which should go to his children,  I feel this should mine.  

ESMOD's picture

To be fair,  i totally get where you are coming from... and ideally, you would not have put him on the deed to a piece of property that you were buying outright with no financial input from him.  But, from his POV.. it sounds like he has financially contributed to your joint living expenses.. including that of his home.  Do you think he might take that suggestion and then think that the fair thing would be to change the deeding of the primary home because he has been the one to pay for it?

I mean... I could definitely see it as equitable.. he inherited a property.. he can leave it to his kids... you inherited funds that allowed you to buy a piece of property.. so you should be able to leave that to YOUR kids.  Right now, that won't happen, but I could see that suggestion being made to him.

That just leaves the matter of the home you currently live in.  What is the reasonable disposition of THAT?  Right now, whoever survives gets it.. that means you won't be left out in the cold... but on the flip side.. he would end up with 100% of it if you pass first.. which means HE would have 100% say over who inherits it.. he could end up remarried and leave it to "her" for all you know..lol. 

But.. like I mentioned.. that other property you bought with inheritance also falls in that bucket where he could end up leaving it 100% to his kids.  You need to change that deed if you absolutely want to protect that asset.

Perhaps that is the only change that needs making?  your kids would get what you inherited.. his kids would get what YOU inherited.. whichever one of you survives gets to keep and stay in the marital home or sell it if you need the proceeds to live.. at the end, you each get to choose what to do with what's left.. that means it's likely that one set of kids won't get anything depending on which of you survives.. but you otherwise have both left them "something.

 

justmakingthebest's picture

I live in VA and do HR. He would have to have you waive rights for his 401k. His life insurance is different. He can put whoever he wants for that. 

My personal opinion is that everything financial and property gets left to the surviving spouse. If you go at the same time (car crash or something), it would be divided up as his goes to his kid and yours goes to yours. 

Once the surviving spouse dies, if there is anything left, which there often isn't if they wind up in any kind of nursing home, it is up to that person as to how they want to divide it. 

Upon either of your deaths, children get sentimental things- favorite watch, wedding band, the signed baseball that he cherished. Those financial aspects of saving are to protect our spouses and ourselves, not our kids. They are grown ass adults. 

If kids are still minors and they are step kids they go to the other parent and are able to collect social security benefits to help with their care. If they aren't horrible people, the surviving spouse might help them with college or a car- but it is up to them.

Findthemiddle's picture

Seeing an attorney to hash this all out is the best way to proceed.   Wills and estate plans save trouble later. Without looking at the deeds, 401k’s, etc. it’s difficult for anyone to give you accurate advice.  Bring all the related documents with you.  Your goal seems to be that you can remain in the residence and live at the same or similar standard of living.  That is entirely reasonable.    After you know where you stand legally, sit down with your DH and have an honest discussion about what the options are and your preferences- then he will need to come forward with his expectations and preferences.  It’s important for you to know what he thinks will happen.  Note life insurance is a good option but not perfect if buying a policy later in life  - the underwriting, premiums, and coverage limits may not be as favorable.  Also, be aware that some policies Jack the premiums up at certain ages, like 70, making them useless.  Work with a good agent to see what your options are.  This can be an emotional topic; however, it’s best to approach with DH in a practical manner.  You’re certainly not out of line- as this topic should be addressed in every marriage head-on. Good luck.

 

notarelative's picture

My personal feeling is that money and property acquired before marriage are separate assets and should be kept separate. Things acquired during the marriage go to the spouse and upon their demise to go all children equally.

401ks go by federal rules and the current spouse has to sign off for it to go to someone else. IRAs go by state rules. In my state you can leave it to your kids without the spouse signing off.

If I were you, I'd research the state rules- maybe talk to a lawyer by myself about my state laws. 

tog redux's picture

OP, see an attorney. People on here have strong opinions on how it should be done and none of them are attorneys. Find out your rights and what is reasonable from someone who knows the laws. 

ESMOD's picture

Legal advice from someone who is well versed in this area is key.  While there are legal framework issues that may have black and white options, what the fair or equitable answer is will be different for different people and different situations. there are so many factors that would feed into it and while it isn't a fun conversation to have, it's better than leaving people with a mess to mop up later.. and risk that what you truly hoped would happen won't.

NYCEastside's picture

I refused to sign off on my husband's 401K. Upon retirment from a major corporation, he converted his 401K to an IRA without my signature or consent. As soon as I found out what he did, I hand delivered a letter to the legal department of his company and stated that my consent (as his wife) was not given. I also checked with an attorney. If he had died PRIOR to retirment the money would have come to me. However, upon retirment it was his perogative to do whatever he wanted with that money and I couldn't stop him. He then converted it to a generation skipping trust for his grandchildren. We are talking about a couple of million dollars here. I have been screwed and there is absolutely nothing I can do about it.

 

Mostthanklessjobever's picture

NYCEastside, I have been reading your posts.  I have to ask, how do you let go of the resentment from how you have been treated??  My life is in no way similar to yours but I struggle terribly with my ill fellings and resentments toward my 2 adult SD's.  I cannot imagine going through what you have.  Much respect to you for being a self made woman and showing the class you have.  It's just a true shame you've been treated this way.

shamds's picture

Sd26 (been in full time graduate employment 2years plus), ss22.5 finished uni a year ago and just had graduation ceremony and spent the past yr being a bum at home, sd15 lives with sd26 in a home my husband bought for skids to live him.

hubby owns 3 homes, inherited some country land from his deceased mother where they have a palm plantation, my husband also has company mandated life insurance policy which pays half a million (willed to me as his spouse and mother of our 2 kids aged 5 & almost 4).

my husband has started a separate savings accohnt for his 3 kids which upon retirement will have $60,000-100,000 approximately in it.

early last year he withdrew a large chunk of his retirement money to buy a home in my birth country thats in my name. Upon retirement in a few years he will have about a million dollars in savings.

my father is in the process of adding me as co-owner to his house as i have always cared for him and thats worth currently about $650,000. My brother and his wife stole money out of my deceased mothers estate in our birth country and mums countey of birth (raided it and went on a shopping spree and justified it)

My husbands life insurance skids and exwife cannot touch, it goes to me as his wife and does not form part of his estate. My husband felt if he were to die before retiring, 2 skids are adults, the money in savings would cover the care for youngest sd as she will be and adult very soon. Exwife believes its solely my husbands job only

when my husband retires, a decent chunk of retirement will be moved to my country of birth where i am living since just prior to covid pandemic and our borders are closed. So should my husband die, skids can only inherit a portion of the homes in his countrh overseas and money in tandem with my kids but as they follow islmic inheritance law, men get double what women get in order to care for their female siblings or family members, reality is this rarely happens and they simply take their cut.

its my husbands feeling should he die, he will have money set aside for cs which is $500 per month for sd15 and no more. Ex wife can get off her arse and get a job but we know reality is it won't happen.

my kids with hubby will benefit substantially because my fathers estate is worth more but also because i'm working and more educated so skids can play the pity card all they want, they will inherit peanuts from bio mum

DPW's picture

Me too! LOL

Mind you, a million dollars in NYC is about $2 bucks where I live! ha!

DPW's picture

Me? Attorney would be my first visit - glad you are doing it.

I think you asking for all or most of his estate to pass to you, after 16 years of marriage, especially when there are no dependent children, is not unfair. They are all adults, legally. And whatever is left after you go, then pass down to all four kids. 

However, I kinda, a little bit, see your husband's side in this. If I was a major contributor financially to the household, there was a lot of it and I had two daughters from a previous marriage, I wouldl want to leave them something directly upon my death, especially if there are grandkids in the future (i.e., college money). So I would probably be flexible and not ask for 100% in the discussions, wanting to set up the kids and grandkids in a better situation financially. I say this if there was a lot of money, of course, more than you'd be using in your lifetime. 

Mostthanklessjobever's picture

Haha, definitely not a lot of money by far.  We live comfortably but there is no hefty savings so to speak. Maybe if I sold everything we owned.  There probably isn't even enough for me to live on indefinitely in my life.  We really do need life insurance.

Rags's picture

In the event of a divorce, once finalized, the X should get nothing, and any kids from a prior marriage should get no more than half of the estate of their parent's subsequent marriage(s) but only upon the demise of both spouses in a subsequent marriage unless the subsequent marriage couple agree and stipulate otherwise in their joint Will. 

In the event that the partners in the newer marriage have kids together and only one of them has prior relationship children... the joint kids should get half plus 1/n of the prior breeding parents half.  Where prior relationship children get only their relative share of their BioParent's half of assets. To keep the math simple, if one partner brings a kid to the blended family marriage and the other does not... and the new partners have a child together... the joint child gets 3/4 of the marital estate, and the prior relationship child gets 1/4.   The half siblings split the half that belongs to their joint parent, and the ours kid gets the entire half that belongs to their non shared parent. 

In this example: JK inheritance = 1/2T +(1/2T)/2  where T = the Total marital assets in the subsequent marriage upon the co-demise of the marital partners and JK is the joint kid.

All genetically related/adopted kids in the blended family inherit equal shares of their bioparent's half of the marital assets.

Non joint children in  a blended family have the potential upside of inheriting from their other bio parent.

In the event that one partner to a subsequent marriage brings multiple kids to the blended marriage, say 9, the other partner has no prior relationship children, and that new marriage couple have one joint child, that joint child inherits 6/10 of the marital estate and the half sibs from the prior relationship breeding parent inherit the remaining 4/10 in equal shares.

JK inheritance = 1/2T + (1/2T)/n where n = the number of kids that the prior relationship breeding spouse brings to the mix plus the JK.

In the event that both subsequent marriage partners bring prior relationship children to the marriage and... they have joint children then the formula would be .......

 

Fool

 

Basic math works. No muss, no fuss, no ring around the collar.

IMHO of course.

In my SS-28's case, he is our sole heir and beneficiary in the event of our joint demise.  He is an only child in our marriage.  His mom and I met when he was 15mos old and married the week before he turned 2yo.  I have been his dad from nearly the beginning.  He asked me to adopt him when he was 22yo. We made that happen.  There are a few personal items that I have stipulated go to my brother but everything else goes to my DW upon my demise and to the Skid upon her demise. Or to me if my DW pre-deceases me and then to the Skid when I kick the bucket.

IMHO it is time to sell the house and roll the proceeds into a newly purchased marital home that SD has zero interest in.

And... get a joint Will drawn up before you get screwed.  At the very least have a lawyer on retainer to protect your interests on the demise of your DH.

I would suggest that you do some research on rights of survivorship in your State to verify if ownership of community property is transferred to the surviving  spouse when the other spouse dies.   In Texas, California, Washington state, and Arizona this is the case.   There may be other states that have right of survivorship laws as well.   Probate is nowhere anyone should want to be upon the demise of their spouse IMHO. Until you motivate the sale of the house and the purchase of a jointly held home... I would not forecast a positive outcome for you in the event DH dies.

Get DH to a lawyer and get a joint Will written.

Good luck.

Mostthanklessjobever's picture

Thanks for your advice and well wishes. I have worked my entire life, I work the same full time job for the last 15 years.  So I do contribute.  

tfsimmons's picture

OK - Since you already work - establish your own single bank account (secretly if needed) and stop contributing to a greedy monster who has butter on both sides of his toast!  Wake his ass up that you refuse to be second fiddle!! Codependent divorced men do not wake up until uncomfortably rattled from their unconsciousness...  Marriage counseling or personal counseling - prior to an Estate attorney - could help your husband hear your voice.  I'm 60 yrs old, 23yrs w/ my husband  and I've dealt with similar issues of your concerns. It's  up to you to protect yourself - and it's NEVER too late to leave OR have peace in your heart, home and marriage. Put yourself first - and stay there!!  

Mostthanklessjobever's picture

Oh I do have my own bank account.  For the entirety of our relationship, 16 years.  Smartest thing to do.