Late-in-life second marriages are becoming commonplace in American society, and with it, anxiety has been rising among stepchildren. Estate planning lawyers have had to pay greater attention to the particular concerns and needs of blended families because also becoming more common is the courtroom brawls between stepparents and stepchildren and stepsiblings.

The first concern I hear from clients is often related to the financial security of the parents. If Mom moved into Stepdad’s home, what’s to keep Stepdad’s kids from kicking her out of the house if Stepdad were to die first?

The second concern is for the adult children’s prospective inheritance from their natural parent. Many state elective share laws dictate that when a person dies, the spouse naturally inherits a certain share of the estate, which will certainly cut into how much, if any, is left to the decedent’s natural children after the spouse dies.

In California, community property laws can be both a blessing and a nightmare for the adult children of a blended family. On one hand, generally, a surviving spouse doesn’t have a claim over to any property or account kept separately and in the deceased’s name.

However, any property that was held jointly (i.e., homes, common bank accounts) is presumed to be community property and, unless that presumption is rebutted in court, it passes entirely to the surviving spouse. And, even separate property may pass in whole or in part to the surviving spouse if the deceased partner leaves no will.

Older adults bring a greater amount of personal wealth into new relationships and, experts say, they are more practical about the financial realities their late-in-life marriage presents.

A prenuptial or postnuptial agreement can keep Mom in the house owned by Stepdad until her death at which point it passes solely to his children. Keeping property separate in trust accounts can prevent it from being transmuted into community property. And a clause inserted into Dad’s will can ensure that the separate property in his name passes to his children, not his spouse upon his death.

After you die, you could either be rolling in your grave because of the nasty legal battle you left your blended family or resting in peace.

James D. Perry

The daughter of oilman Alfred C. Glassell Jr., founder of Transcontinental Gas Pipe Line Co., is contesting his will in a Texas probate court saying he was manipulated by his lawyers to leave most of $500 million fortune to charity.

Glassell executed a will in 1998, which left his daughter, Curry, and her two sons more than $100 million. But she is challenging his 2003 will, believed to be the final one Glassell signed before his death last year, which transfers most of his money to Houston’s Museum of Fine Arts and to a family foundation run by Curry’s younger half-brother.

The probate lawyers trying the case told the jury panel that Glassell must be declared mentally incompetent at the time he signed the 2003 will for it to be invalidated.

This is a big risk for Curry as the 2003 will contains a broad no-contest clause. If Curry doesn’t win her fight in probate court, she forfeits her entire inheritance, which is roughly one-tenth the size of the one bequeathed to her in the 1998 will – still a sizable chunk of change.

The state of California gives full force to no-contest clauses with a few exceptions, and they can be especially beneficial where family dynamics are tumultuous.

A no-contest clause is a provision in a will, trust, or other estate-planning instrument to the effect that a beneficiary who contests the instrument forfeits any gift made by the instrument. It is intended to reduce litigation by disappointed beneficiaries.

California law includes probable cause exceptions for menace, duress, fraud, or undue influence where a beneficiary who challenges the document with probable cause would not be subject to forfeiture under the clause.

Curry doesn’t have that protection. If she prevails in her challenge, she may nullify his 2003 will and have the 1998 will declared valid.

Or she could lose everything.

James D. Perry.

Former NFL quarterback Steve McNair was shot and killed in what police have deemed a murder-suicide on July 4, 2009, apparently at the hand of his mistress.

He left a wife, Mechelle, and four young children (two from a previous relationship), and no will or estate plan.

McNair’s estate is sizeable. He earned more than $90 million in his playing career, not including marketing and endorsement deals. At last inventory, his widow listed his estate assets at around $19.6 million.

Mechelle McNair hired a probate attorney and was granted the legal authority to administer his estate. However, in the probate petition, she listed only herself and her natural children as heirs saying she didn’t have proof that the other two were McNair’s natural children.

McNair was ordered by Mississippi courts to provide child support for the two children, which seems to indicate that Mechelle really had no reason to doubt their parentage. And while it doesn’t appear that Mechelle plans to challenge their claims to the estate, the two children – both of whom have attorneys representing their interests – have not yet filed as beneficiaries.

And most recently, another Mississippi woman has come forward claiming that McNair fathered her 17 year-old daughter.

And these are just the claims from McNair’s heirs and potential heirs. This says nothing of his outstanding debts, one of which may be unpaid rent for an apartment that may have housed a second mistress.

This sad story of his death is further agitated by the fact that this family’s grief and indiscretions must be played out in public.

Even if you are not a celebrity, or weren’t murdered by your mistress, there is no privacy when your assets go through the probate court – not from the media nor from the nosy neighbors next door. Everything is out there for the world to see, your debts, an itemization of each of your assets, and the names and addresses of your heirs.

A good estate plan can avoid this. Just do it.

James D. Perry

Richard Pryor’s widow, Jennifer Lee, and one of his daughters, Elizabeth, have been warring in the courts over his estate since 2005.

Pryor was a well-known comedian and actor. He was married seven times to five different women. He and Jennifer married for the first time in 1981 and divorced in 1982. They married again in secret in 2001.

In the mid-1980s, he was diagnosed with multiple sclerosis. Towards the end of his life, Jennifer became his primary caretaker. Pryor died in 2005.

His daughter Elizabeth did not learn of Pryor’s remarriage until sometime after her father’s death. Elizabeth first tried to petition for annulment of Pryor’s marriage, alleging fraud and undue influence.

If she had been successful in getting the court to void the marriage, she may have succeeded in barring Jennifer’s claim to Pryor’s estate under the California law that prohibits caretakers from becoming beneficiaries.

The law exists to prevent caretakers from exercising undue influence over their elderly and infirm clients to gain access to their fortunes.

This case breaks new ground because of the issue of the fact Pryor was married, but that the marriage was not public, thereby making it impossible for anyone to know of or challenge the marriage as a product of undue influence or incapacity on the part of Pryor.

The court has now said that it’s too late to challenge a marriage after death. This looks like a road map to ripping off the elderly or infirm – just marry them in secret and keep it quiet until after they are dead.

James D. Perry

Family dynamics play an interesting role in drafting an estate plan. 

Every so often I meet with clients who, for whatever reason, just don’t like a son-in-law or daughter-in-law, and want to figure a way to keep their son or daughter’s inheritance in the family in the event of a divorce, death, or other unexpected life event.

Fear of a child’s divorce is a common problem in estate planning. Clients are concerned that the inheritance they leave their adult children will become community property subject to 50/50 division upon divorce. This simply isn’t the law in California.

California is a community property state.  But stocks, bonds, cash, property and other assets that are passed through inheritance to an individual are considered separate property - as long as they remain in the name of the recipient.

If your kids are careful with their inheritance, it won’t get lumped into the marital assets.  But this is where family dynamics come into the equation. They need to somehow resist the request of their wonderful, loving husband or wife to add his or her name to inheritance. This is the hard part.
 
Financial columnist Liz Pulliam Weston gave an excellent explanation of this subject in a recent article in MSN Money. Ms. Weston points out that some couples can’t imagine keeping separate assets, some remain pragmatically enthusiastic about individual accounts, and others incorrectly assume the law requires them to share.  The decision to keep an inheritance separate can take a great toll on the marital relationship causing a great deal of stress.

You can hope that your adult child would respect your wishes under pressure, but estate planning is all about creating peace of mind for now and later.  In such a situation, I might suggest that a trust be set up instead to ensure that whatever assets you leave go solely to those you intend.

Discussing these details with your attorney will better enable him or her to develop a plan that will best suit your life and your estate.

James D. Perry

As times have changed, so has the field of estate planning. When I started out in the field 22 years ago, people and their lives seemed to be less complicated.  As the years went by, it seems like the issues my clients shared with me became more complex.  Perhaps as I gained experience and felt more competent as a counselor, they were able to open up and tell me what was really on their minds.

Planning for the 21st Century Family

Today, clients who have been married for 40+ years and have two well-adjusted children and four well-adjusted grandchildren are in the minority.  Ozzie and Harriet don’t live here anymore, perhaps they moved to the midwest.

Instead, experienced estate planning attorneys are faced with planning for informed and sophisticated clients who come with “baggage” - singles (either by choice or through divorce), same sex couples, unwed couples, blended families, and dysfunctional families.

This change in family dynamics has led to a significant shift in how estate planners help their clients plan for incapacity and death. Today we have to listen and counsel more and offer insight and guidance on a case by case basis instead of just providing basic information and a generic solution. We are collaborators with our clients instead of sellers of estate plans.

This is why it’s so important for you to find an estate planning attorney who you feel comfortable enough with to tell everything - about your grandson who is addicted to drugs; your sister whom you haven’t seen in 20 years; your daughter-in-law who has turned your son and other children against you; your daughter and only child who has turned her back on you.

Without this information, your attorney won’t be able to work with you to develop an estate plan that will really work for you and your family. Your estate planning attorney needs to hear it all - the good, bad, and ugly - and then help you put together an estate plan especially tailored to your current situation. And as time goes by and your life changes, you’ll need to go back to your trusted estate planning attorney again and perhaps again and again to tweak, fine tune, and revise your plan.

If you view your estate plan as a static set of documents that you do once and then forget about, then you’ve been greatly misled. That’s why you are better off  committing to a long term relationship with a trusted advisor, someone who takes the time to understand you and your family dynamics now and also understands that those dynamics can and will continue to change.

The son who you have been estranged from for 20 years comes back into your life, and you have to ask your heart if you want to take him back after the hurt you have felt for all of those years 

As your life changes, your estate plan needs to change. Don’t procrastinate on making the changes.

James D. Perry