Using a Disclaimer Trust to Transfer Land

July 7, 2025

A husband dies, with an estate plan presenting two options to his surviving spouse: she can either inherit family farmland outright or disclaim it to a separate trust for her benefit. If she chooses the trust, she will receive income for life, and upon her death, the disclaimer trust will be divided equally among her three children. How to manage this situation is explored in an article from Successful Farming, “Should Land Go Into a Disclaimer Trust or Pass to the Spouse?” There are benefits to using a disclaimer trust to transfer land.

The concern is valid, as only one of the children is farming the land, and he’s concerned about how his siblings will accept the decision. She was told that the trust would be a good option due to its tax advantages. What are her options? There are five key elements to consider:

Estate taxes. In 2025, the federal estate tax exemption is $13.99 million per person. If she disclaims her husband’s portion of the land to the trust, the value won’t count towards her own personal estate. If she keeps the land, she can take advantage of portability for her husband’s exemption under IRS Form 706. Her own estate tax limit will increase to almost $28 million. The ported tax credit will remain flat as the estate’s value grows.

Asset protection. If the land goes into the disclaimer trust, it’s in there for good, and income and principal distribution rules can’t be changed. This is beneficial for protecting assets from creditors, as well as any complications arising from a second marriage or incapacity. However, is it beneficial for the family? If they need protection, the disclaimer trust is the place for the land. However, if they need it to be accessible, it should remain outside of the trust.

Asset control. The trustee is the fiduciary responsible for assets in the disclaimer trust. They can set a rent price and make decisions on capital improvements. Questions need to be clarified regarding requirements in the trust documents. Do these rules work for the family’s best interest, or is it better to have rules as defined in the surviving spouse’s will?

Distribution. Assuming the disclaimer trust ultimately divides the land between the three siblings, it lacks a means of keeping the land together. How will the son continue farming, knowing the land will be divided? Retrofitting a farm succession plan is like trying to move crops from one field to another. They won’t look pretty and may or may not grow.

This scenario is not unlike the situation many small business owners find themselves in when the spouse who has created a business dies and no succession planning has been done. There are benefits to using a disclaimer trust to transfer land. An appointment with an estate planning attorney is crucial for creating a comprehensive plan that encompasses the farm, business and family for both the near and distant future. if you would like to learn more about disclaimer trusts, please visit our previous posts.

Reference: Successful Farming (June 9, 2025) “Should Land Go Into a Disclaimer Trust or Pass to the Spouse?”

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How Do You Protect Your Child’s Inheritance in a Second Marriage?

July 2, 2025

A recent article from MSN, “’I’m 15 years older’: My second wife says she will pass my estate onto my sons. What could go wrong?” presents a question from a man with two adult sons from a prior marriage with $1 million in personal net worth. He’s wondering whether to rely solely on his wife’s verbal assurance to pass his estate to the adult sons if he predeceases her. This begs the question: How do you protect your child’s inheritance in a second marriage?

The sons are successful in their careers and don’t need his money. The man says his wife is one of the most honest people he’s ever met. However, is trust enough?

Estate planning files are filled with broken promises, not because of dishonesty. Circumstances change, and things happen. Having an updated estate plan, including a trust to safeguard assets for children from a prior marriage, is the best way to ensure that their interests are protected.

A large age difference or a large disparity between the spouses’ assets makes it wise to take the extra steps to preserve assets for the next generation. Otherwise, there’s no requirement for the surviving spouse to pass the assets on to the children.

If the surviving spouse remarries, the assets could even end up with children of their surviving spouse.

There are time-tested ways to distribute assets to children from a prior marriage to ensure that the spouse is well cared for and the children are not disinherited. One way to do this is to use a will to divide assets between the surviving spouse and the children.

Another is to leave the home, if it is in your name only, to the surviving spouse as a life estate, so they will be able to live in it for the rest of their life. The house will need to be maintained, and property taxes paid during that time. When the spouse dies, the house can then be left to the children to sell or keep. This can become complicated if the children are in a hurry to sell the home and the surviving spouse has a long life expectancy.

Marital trusts, like a Spousal Lifetime Access Trust or SLAT, are used to leave assets to the surviving spouse, while protecting the children’s inheritance. They can also be used to control how the assets in the trust are used. Funds can be earmarked for college, or if a child requires rehabilitation, the trust can fund it or set a requirement before distributions are made.

Tax benefits using a marital trust are higher than those for a straightforward inheritance, another reason to use a marital trust.

Note, this is not an issue to be resolved with a pre- or post-nuptial agreement. A will goes into effect upon your passing, and a trust becomes active once it is established. A pre- or post-nuptial is a good idea for a second marriage with age and net worth differences. However, this kind of situation requires a will and a trust.

Talk with an experienced estate planning attorney to create an estate plan to protect your child’s inheritance in a second marriage It will take the burden off all of you, since the decisions for asset distribution will be in place, and you can focus on enjoying your life with your new spouse. If you would like to learn more about inheritance planning, please visit our previous posts.

Reference: MSN (May 3, 2025) “’I’m 15 years older’: My second wife says she will pass my estate onto my sons. What could go wrong?”

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Avoid the Survivor’s Tax Penalty After the Death of a Spouse

June 30, 2025

When one spouse passes away, the surviving partner often assumes their financial obligations will decrease. However, many widows and widowers face a surprising increase in their tax burden. Known as the “survivor’s penalty,” this issue affects individuals who transition from joint filing to single status, often while still receiving the same or similar income. There are some tips to avoid the survivor’s tax penalty after the death of a spouse.

As a result, survivors may end up in a higher tax bracket, lose key deductions and pay more on Social Security or investment income. If you or a loved one is navigating life after a spouse’s death, proactive tax and estate planning can help reduce this burden and preserve your financial stability.

What Is the Survivor’s Penalty?

The survivor’s penalty refers to the increased income taxes surviving spouses may face after switching from “married filing jointly” to “single” or “qualifying widow(er).” This change impacts:

Income tax brackets, which become narrower for single filers
Standard deductions, which are cut nearly in half
Taxation of Social Security benefits, which may be higher if income remains steady
Medicare premiums, which increase with higher taxable income

This situation is prevalent among retirees who rely on Social Security, pensions, or retirement accounts for their income. A surviving spouse may lose only a portion of the household income but still be taxed as a single person, resulting in a higher effective tax rate.

Real-World Impact on Retirees

Consider a couple filing jointly who has a combined income of $90,000. Their federal tax liability may be relatively modest thanks to the wider joint tax brackets and higher standard deduction.

However, if one spouse dies and the survivor continues to receive $70,000 in income, including retirement accounts and survivor benefits, they may be subject to a higher tax bracket. That income could also cause more of their Social Security benefits to become taxable and raise their Medicare Part B premiums.

These hidden costs can take a significant toll on a surviving spouse, especially during an emotionally and financially vulnerable time.

How a Probate Attorney Can Help You Plan Ahead

The best way to avoid the survivor’s penalty is to anticipate it while both spouses are still living. With the help of a probate or elder law attorney and financial advisor, couples can build tax-efficient strategies that reduce exposure.

Some options include:

Roth conversions: Paying taxes on retirement accounts now to reduce taxable income later
Adjusting Social Security claiming strategies: Coordinating timing to maximize survivor benefits
Splitting income-producing assets: Using trusts to distribute income more evenly across heirs or generations
Using the step-up in basis: Taking advantage of tax resets on inherited assets to reduce capital gains

It’s also important to ensure that estate planning documents reflect your current wishes. A surviving spouse who is suddenly left in charge of financial and medical decisions needs clear legal authority through powers of attorney, healthcare proxies and updated wills or trusts.

What to Do after a Spouse’s Death

If you are already a surviving spouse, it’s not too late to act. In the year of a spouse’s death, the surviving partner can still file a joint return. After that, unless they have a qualifying dependent, they must file as single.

Working with a probate attorney can help avoid the survivor’s tax penalty after the death of a spouse. They will help sort through estate settlements, beneficiary changes and tax filings. A CPA or financial planner can also assess how the change in filing status impacts required minimum distributions (RMDs), Medicare and taxes. If you would like to learn more about tax planning after the death of a loved one, please visit our previous posts.

Reference: CNBC (November 6, 2024) “You could face the ‘survivor’s penalty’ after a spouse dies — here’s how to avoid it”

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The Estate of The Union Season 4|Episode 4 is out now!

June 16, 2025

The Estate of The Union Season 4|Episode 4 is out now! While it can sound shocking, the Mortality Rate in Texas is 100%!!!

Brad is an old Boy Scout and the Scout’s motto is “Be Prepared.” This edition of The Estate of the Union is all about preparation and what terrible things can happen to the family of someone who was NOT prepared.

Ann Lumley is an extraordinarily respected attorney, and she is the Director of After Life Care here at Texas Trust Law. Ann and Brad discuss the challenges faced by loved ones whenever anyone passes away, and particularly when the deceased had no planning or inadequate planning. Ann has the ability communicate complex concepts clearly – and with a sense of humor too!

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 4|Episode 4 is out now! The episode can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. If you would prefer to watch the video version, please visit our YouTube page. Please click on the links to listen to or watch the new installment of The Estate of The Union podcast. We hope you enjoy it.

Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. We provide estate planning services, asset protection planning, business planning, and retirement exit strategies.

What’s the Difference Between Estate and Trust Administration?

June 9, 2025

When loved ones die, their assets don’t automatically transfer to heirs. Whether the decedent had a will, a trust, or both, someone must carry out their wishes and follow legal steps to ensure that everything is distributed properly. This is where estate administration and trust administration come in. What’s the difference between estate and trust administration?

Both processes involve managing assets, paying debts and ensuring that beneficiaries receive what they are entitled to. However, the similarities end there. The legal structures, court involvement and administrative duties vary significantly depending on whether the assets are passing through probate or being managed under a trust.

Understanding the distinction helps families avoid delays, prevent disputes and choose the right planning tools.

What Is Estate Administration?

Estate administration refers to the legal process of settling a deceased person’s affairs when assets are passed through a will or when no will exists. This process is commonly known as probate.

In probate, a court oversees the distribution of the decedent’s property. The executor named in the will (or an administrator appointed by the court if there is no will) is responsible for:

Collecting and inventorying assets
Notifying creditors and paying valid debts
Filing tax returns
Distributing remaining assets to beneficiaries according to the will or state intestacy laws

The probate process can take several months or longer, depending on the complexity of the estate, state laws and whether disputes arise. While probate ensures court oversight and accountability, it can also be public, time-consuming and costly.

What Is Trust Administration?

Trust administration occurs when a person dies with a valid trust, typically a revocable living trust that becomes irrevocable upon death. Assets titled in the name of the trust avoid probate and are instead managed privately by the named trustee.

The trustee’s duties include:

Identifying and managing trust assets
Notifying beneficiaries
Paying debts and taxes
Distributing trust property according to the trust’s terms

Unlike probate, trust administration usually does not require court involvement. This results in faster, more private handling of the estate. However, the trustee is still legally obligated to act in the best interests of the beneficiaries and follow the terms of the trust precisely.

Trustees may still need legal or financial guidance, especially if the trust includes business interests, real estate, or ongoing support for a minor or special needs beneficiary.

The Roles of Trust and Estate Administration

What’s the difference between estate and trust administration? Neither estate nor trust administration is inherently better. Instead, they serve different purposes depending on the family’s needs and the deceased’s planning goals.

Trusts can streamline the asset distribution process, reduce court involvement and protect privacy. However, they require planning during life to fund the trust and title assets properly. A will, by contrast, is simpler to create but often leads to a lengthier probate process after death.

In many cases, a comprehensive estate plan includes both a will to address any remaining assets outside the trust and a trust to manage major property.

Proper planning with a qualified estate planning attorney ensures that the chosen administrator or trustee understands their role and is legally equipped to handle responsibilities smoothly. If you would like to learn more about estate administration, please visit our previous posts.

Reference: Justia (October 2024) “Trust Administration Law”

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Understanding the Essentials of Social Security Survivor Benefits

June 4, 2025

It took nearly two years for one woman to obtain her Social Security survivor benefits, despite her three decades of working in a county District Attorney’s office and knowing how to navigate government systems. Ironically, the very same systems created to help widows and widowers during a time of grief end up adding to their stress, says a recent article from Next Avenue, “’What I Learned About Survivor Benefits After My Husband Died.’” Perhaps the most essential way to prevent problems is to take care of any possible snags while your spouse or partner is still living. This starts with understanding the essentials of survivor benefits for Social Security, pensions, or annuities. It also includes reviewing the names of account beneficiaries.

Three facts to bear in mind:

When a spouse dies, the surviving spouse does not receive two benefits. They receive one Social Security benefit, usually the higher of the two amounts. Planning for the loss of one of the two checks is essential.
Survivor benefits are based on two things. First, the spouses’ age when they pass, and second, the surviving spouse’s age when claiming surviving benefits. Those already collecting benefits can switch to the higher of the two benefits.
Even if the decedent spouse hadn’t filed for Social Security at their death, the survivors’ benefit amount is based on the amount the decedent would have received at their Full Retirement age (FRA). If the spouse were older than the FRA when they died, their benefit amount would be adjusted for those years.

The widow wasn’t expecting two checks, and she knew she was entitled to 100% of her spouse’s benefit because she had been married for at least nine months and didn’t remarry before turning 60. She also had claimed her survivor benefit after reaching at least FRA for survivor benefits, which has a different set of rules than regular FRA. The FRA is 66 and 4 months for survivor benefits if born in 1958. It’s 66 and 6 months for those born in 1959 and rises to age 67 for those born in 1962 or later.

She knew her husband’s benefits were higher than hers, but didn’t know how much higher. This one detail was the missing fact, causing her benefits to be tied up for more than 18 months. She needed to provide endless verifications, identification, and other documents to get it figured out.

Here’s what you need to know to avoid or at least minimize the stress of collecting survivor benefits:

Report the death of a spouse to Social Security as soon as possible.
Have an original death certificate.
Your own and your spouse’s Social Security numbers
Your birth certificate
A marriage certificate if you’re a surviving spouse.
Divorce papers if you’re applying as a surviving divorced spouse.
SSNs for any dependent children and their birth certificates
The most recent W-2 Wage and Tax statement or the latest federal self-employment tax returns.
The name of your bank and account number for direct deposits.

Planning for survivor benefits should be included as you go through the estate planning process. Your estate planning attorney will have helpful tips to ensure both spouses understand the essentials of survivor benefits for Social Security, so you are well protected and prepared for one of life’s hardest events. If you would like to learn more about social security and estate planning, please visit our previous posts.

Reference: Next Avenue (May 7, 2025) “’What I Learned About Survivor Benefits After My Husband Died’”

Older Couples Should Consider Premarital Agreement

May 29, 2025

Marriage later in life brings special joys—and specific legal and financial considerations. Whether it’s a second marriage, a partnership after raising children, or finding love after retirement, older couples often have more complex financial situations than younger newlyweds. Older couples should consider a premarital agreement.

Assets, retirement savings, real estate and inheritances accumulated over decades must be handled with care. A premarital agreement (often called a prenuptial agreement) is one of the most practical tools to protect individual and family interests. Far from being a sign of mistrust, a well-crafted agreement fosters transparency, protects loved ones and reduces the risk of disputes if the marriage ends through death or divorce.

Why Older Couples Should Plan with a Premarital Agreement

Older couples frequently bring established financial histories into marriage. They may own homes, businesses, investment portfolios, or have obligations like alimony or child support from previous relationships. Some may wish to preserve assets for adult children or grandchildren.

Without a premarital agreement, state laws—rather than personal wishes—may determine how property is divided upon divorce or death. In many cases, a surviving spouse is entitled to a significant portion of the estate, even if the deceased spouse intended to leave more to children from a prior marriage.

A premarital agreement allows couples to customize these outcomes, ensuring that their wishes are respected and that their marriage starts with full financial clarity.

Key Issues to Address in a Premarital Agreement

Premarital agreements typically address how assets and debts will be handled both during the marriage and in the event of divorce or death. Common topics include:

Identifying separate versus marital property
Defining how jointly acquired assets will be divided
Specifying inheritance rights for children from previous relationships
Clarifying responsibility for debts incurred before or during the marriage
Determining spousal support or waiving it altogether

Couples may also include agreements about healthcare decision-making, although these issues are often handled through separate estate planning documents.

While some topics, like child custody or child support for minor children, cannot typically be negotiated in advance, most financial and property-related matters are fair game.

Protecting Heirs and Family Interests

For older individuals with children from previous marriages, a premarital agreement can protect family inheritances. Without one, surviving spouses could inherit property that parents intended to pass directly on to their children.

Using a premarital agreement in combination with updated wills, trusts and beneficiary designations creates a comprehensive plan that reflects your true intentions and avoids accidental disinheritance.

It’s also an act of love—shielding family members from costly, painful legal disputes and ensuring that everyone understands and respects your wishes.

Premarital Agreements Strengthen Communication

Discussing finances can be uncomfortable. However, it builds stronger foundations. A premarital agreement encourages open conversations about money, values and expectations. It forces couples to talk about important topics—retirement plans, caregiving needs and financial obligations to others—that might otherwise be overlooked.

Rather than undermining romance, these discussions show respect for each other’s histories and futures. They create shared understanding and prevent surprises down the road.

The Importance of Independent Legal Advice for Each Spouse

For a premarital agreement to be legally enforceable, each party should have their own attorney review the document. This ensures that both individuals understand their rights and obligations and that the agreement cannot be challenged later due to claims of coercion or misunderstanding.

Older couples should consider a premarital agreement. Working with an experienced estate planning or family law attorney ensures that the agreement is tailored to your state’s specific requirements and your unique circumstances. If you would like to learn more about planning for older couples, please visit our previous posts.

References: American College of Trust and Estate Counsel (ACTEC) (Nov. 5, 2020) “What Is a Prenuptial Agreement?” and Hello! Magazine (April 2025) “King Charles and Queen Camilla’s Separate Homes: Was a Marital Agreement Involved?”

Image by Louise Armstrong

Including Siblings in Estate Planning for a Child with Special Needs

May 22, 2025

When parents plan for the future of a child with special needs, they often focus on legal and financial tools, like special needs trusts and government benefits. However, one crucial group is usually left out of the conversation: the siblings. Siblings may one day step into caregiving or advocacy roles, formally or informally. They may be expected to help manage a trust, ensure their brother or sister receives appropriate care, or provide emotional support. Including siblings in the estate planning process for a child with special needs creates a foundation for smoother transitions, reduces misunderstandings and gives everyone a clearer sense of their role.

Why Siblings Matter in Long-Term Planning

Siblings are likely to be the longest-standing relationships in a person’s life. As parents age or pass away, brothers or sisters often remain. Even when a sibling won’t serve as a primary caregiver or trustee, they will likely be involved in day-to-day support, communication with care providers, or an emotional anchor.

Nevertheless, siblings are often unaware of their parents’ intentions. They may not understand the purpose of a special needs trust or how decisions will be made after the parents are no longer involved. This lack of clarity can lead to confusion, resentment, or even legal conflict, particularly if siblings are also beneficiaries of the estate.

Opening the Conversation

Including siblings starts with honest communication. Parents should share the basics of their estate plan, explain how decisions have been made and invite questions or concerns. Topics may include:

Who will serve as the trustee or successor trustee of a special needs trust
How resources will be allocated among siblings
What expectations (if any) exist for caregiving or advocacy
How government benefits are being protected through legal planning

This conversation doesn’t need to happen all at once. Instead, family discussions can gradually unfold as siblings mature and understand each other’s needs. The key is ensuring that they feel informed and supported, not burdened.

Legal and Financial Education for Siblings of Special Needs Children

Parents should also ensure that siblings have access to the legal and financial information they may need someday for the family or the child with special needs. This may include providing copies of estate planning documents, explaining the function of the special needs trust, or walking them through how public benefits, like Medicaid or SSI, are affected by financial support.

Naming a sibling as a future trustee, power of attorney, or healthcare proxy without adequate preparation sets them up for stress and potential failure. Parents should consider naming a professional fiduciary or co-trustee to provide support if a sibling is unwilling or unable to serve in these roles.

Creating a Team Approach in Special Needs Planning

Planning doesn’t have to fall on one person’s shoulders. Families often succeed by creating a “care team” approach that includes parents, siblings, professionals and close family friends. Roles can be shared or divided—for example, one sibling might handle legal decisions while another provides social support.

Clear documentation of these roles within estate planning documents and written letters of intent helps ensure consistency if multiple people are involved in the care or oversight of a sibling with special needs.

Strengthening Family Bonds Through Inclusion

Including siblings in the estate planning process for a child with special needs isn’t just a practical decision—it’s an emotional one. It signals trust, values their role and lays the groundwork for cooperation. It also honors the future relationship between siblings, ensuring that love and respect continue even after the parents are gone.

Planning with siblings in mind helps prevent conflict, confusion and unintended consequences. Most importantly, it ensures that people with special needs receive the lifelong support they deserve. If you would like to learn more about special needs planning, please visit our previous posts.

Reference: MassMutual (July 19, 2023) “Living with special needs: The sibling perspective”

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Ways to Avoid Estate Disputes between Stepchildren

May 20, 2025

Estate planning in blended families comes with unique challenges. When stepchildren, stepparents and biological children are all involved, assumptions and emotions can complicate even the most well-intentioned plans. Conflicts over assets, inheritances and decision-making are more likely without a clear and legally enforceable estate plan. There are ways to avoid estate disputes between stepchildren.

While no estate plan can eliminate all tension, families who plan proactively can avoid common pitfalls that lead to disputes. Clarity, transparency and the proper legal tools make it possible to protect both your wishes and the well-being of your loved ones.

Why Stepchild Disputes are Common in Inheritance Planning

Stepchildren are not automatically entitled to inherit from a stepparent’s estate unless they’ve been legally adopted or are specifically named in a will or trust. This could lead to resentment, mainly if a close emotional bond existed during life but wasn’t reflected in the legal documents.

Alternatively, biological children may worry that a new spouse or stepchildren will “take” what was intended for them. If a surviving spouse remarries or rewrites the will, children from a prior marriage may be disinherited altogether. These fears—real or imagined—can cause deep family rifts and even legal battles.

Strategies for Preventing Conflict in Blended Families

The best way to prevent disputes is through clear and detailed estate planning. A professionally drafted will or trust should specify exactly how assets will be divided and why. This includes naming all intended beneficiaries, assigning specific gifts and documenting the roles of trustees or executors.

A revocable living trust can offer more control than a simple will for families with significant assets or complicated dynamics. Trusts allow for staged distributions, protect privacy and make it harder to contest inheritance decisions.

Another strategy is using prenuptial or postnuptial agreements to clarify what each spouse brings into the marriage and how it should be handled upon death. This provides peace of mind for both spouses and their children.

Communicating Inheritance Expectations Early

Estate plans are most effective when they don’t come as a surprise. Open communication is crucial, especially in blended families. While these conversations may feel awkward, they help set expectations, reduce suspicion and provide clarity.

Explaining contentious decisions, such as trust establishment or asset division, is essential to clarity and family cohesion. Explaining why one child receives more support than another can help family members understand your intentions and reduce the likelihood of conflict after your passing.

A written letter of intent, included with your will or trust, can be used further to explain your wishes and the reasoning behind them. This document has no legal authority but can be powerful in easing emotional tensions.

Choosing the Right Fiduciaries

Naming an executor or trustee perceived as neutral can help avoid conflict. In blended families, appointing one child or stepchild over another can raise concerns about fairness. Sometimes, a professional fiduciary—such as an attorney or trust company—may be the best option.

This approach ensures that your estate is administered according to the law and the terms of your plan, rather than through family politics. It also reduces the burden on loved ones who may already be coping with grief and loss.

Updating the Plan after Major Changes

Blended families often experience significant life changes—remarriage, new children, moves, or the death of a former spouse. Any of these events should prompt a review of your estate plan. Beneficiary designations, wills and trusts should reflect your current wishes and family structure.

Outdated documents can create confusion or lead to unintended outcomes. Regular reviews—ideally every few years or after significant life changes—keep your plan current and effective. Discuss with an estate planning attorney the ways your family can avoid estate disputes between stepchildren. If you would like to learn more about blended families and estate planning, please visit our previous posts.

Reference: The Wall Street Journal (June 1, 2024) “The Brady Bunch Breaks Down: Estate Fights Tear Stepfamilies Apart”

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Steps to Avoid Inheritance Issues in Second Marriages

May 13, 2025

Second marriages often bring joy, stability and a fresh start. However, they can also create complicated estate planning challenges. When one or both spouses have children from previous relationships, the risk of conflict over inheritance increases dramatically. Individuals often assume that love and goodwill will prevent disputes. However, without clear legal documentation, misunderstandings, unintentional disinheritance and even litigation can follow. Protecting your spouse and your children—biological and step—requires planning that accounts for family dynamics, legal priorities and financial realities. There are steps you can take to avoid inheritance issues in a second marriage.

Understand How the Law Treats Second Marriages

State intestacy laws (those that apply when someone dies without a will) typically prioritize spouses and biological children. In many cases, if a person dies without a clear estate plan, the surviving spouse will receive a significant share, possibly even everything, leaving stepchildren with little or nothing.

Even with a will, challenges can arise. A surviving spouse may claim an “elective share,” a legal right to a portion of the estate that can override the terms of a will. Children from a previous relationship may be unintentionally disinherited if all assets pass to the surviving spouse, who then distributes them according to their own will, or not at all.

These risks are exceptionally high in cases where only one spouse brought significant assets to the marriage or when there is a considerable age difference, business ownership, or a family history of conflict.

Use Trusts to Protect Both Spouse and Children

One of the most effective tools for second marriage estate planning is a trust. A revocable living trust allows you to maintain control over your assets during your lifetime, while outlining exactly how they should be distributed after your death.

For example, a Qualified Terminable Interest Property (QTIP) trust can provide income to a surviving spouse for life, with the remainder passing to the deceased spouse’s children. This structure protects both parties: the surviving spouse is financially supported, and the children are assured a share of the estate later.

Trusts can also help avoid probate, preserve privacy and reduce the risk of disputes. Unlike a simple will, a trust allows for more detailed instructions and layered planning.

Keep Beneficiary Designations Up to Date

Many assets—like life insurance policies, retirement accounts and bank accounts—pass directly to the person named as a beneficiary, regardless of what’s written in your will. That means an ex-spouse could still receive your IRA if you never updated the paperwork.

Review your beneficiary designations after remarriage to ensure that they reflect your current wishes. In blended families, dividing assets across multiple accounts may be appropriate to benefit both your spouse and children directly.

You should also consider how these accounts fit into your broader estate plan to ensure no one is unintentionally left out.

Communicate Your Intentions Clearly

Estate disputes often stem from unmet expectations. Children may assume they will inherit certain assets, only to learn after a parent’s death that those assets were left to a stepparent. Likewise, a surviving spouse may be surprised to learn that children from a previous marriage are co-owners of the family home.

The best way to avoid this confusion is to talk openly with family members about your wishes. Explain your decisions, address concerns and show how your plan provides for all parties involved. These conversations may be uncomfortable. However, they are often the most effective way to prevent conflict.

Taking these steps to avoid inheritance issues in a second marriage can mean the difference between family harmony and chaos. Putting these intentions in writing with the help of an estate planning attorney ensures that everyone’s rights and responsibilities are legally protected. If you would like to learn more about inheritance and estate planning, please visit our previous posts.

References: CBC News (April 1, 2025) “Director Norman Jewison’s wife cut him off from family, coerced him to change $30M will, lawsuits claimed” and Marriage.com (Oct 12, 2023) “5 Tips to Avoid Inheritance Issues in Second Marriages”

Photo by Barna David

Category: Family

Using a Disclaimer Trust to Transfer Land

How Do You Protect Your Child’s Inheritance in a Second Marriage?

The Estate of The Union Season 4|Episode 4 is out now!

What’s the Difference Between Estate and Trust Administration?

What Is Estate Administration?

What Is Trust Administration?

The Roles of Trust and Estate Administration

Older Couples Should Consider Premarital Agreement

Why Older Couples Should Plan with a Premarital Agreement

Key Issues to Address in a Premarital Agreement

Protecting Heirs and Family Interests

Premarital Agreements Strengthen Communication

The Importance of Independent Legal Advice for Each Spouse

Ways to Avoid Estate Disputes between Stepchildren

Why Stepchild Disputes are Common in Inheritance Planning

Strategies for Preventing Conflict in Blended Families

Communicating Inheritance Expectations Early

Choosing the Right Fiduciaries

Updating the Plan after Major Changes

Steps to Avoid Inheritance Issues in Second Marriages

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