Can Dad dictate my stepmom's heirs?
Is there any way for my dad to stipulate in his will that AFTER his wife dies, his kids gets some of what's left?
Dad will likely die first. He plans to leave everything to his wife (our stepmom), which makes perfect sense. However, after she dies, we know she will leave all the money to HER kids, and not his. Is there anything he can do to suggest we get some if there is any left?
Where there’s a will—or a trust—there’s a way to do this. You might imagine that you are not the first to want an arrangement that would reasonably provide security during a stepparent’s life, then allow it to revert to the other parent’s natural children.
And so your father could stipulate in his will that his wife gets a life estate in certain property—the right to use and enjoy the property as long as she is alive—then have it pass to other secondary beneficiaries. He could choose either to name specific secondary beneficiaries for specific property—or have all the property go into a pot and then be divided by named survivors, either in equal parts or in differing percentages.
And your dad could accomplish the same thing by setting up a trust that directs how his valuable property should be divided. In a common arrangement, for example, married couples create something called an “AB” trust for their property. When one spouse dies, the survivor gets only a life estate interest in the deceased spouse’s trust property, which is tagged to go to back-up beneficiaries—such as named children—when the surviving spouse dies.
Because these arrangements are sometimes a tad tricky to set up, your dad might want to hire a lawyer for help.
But you can help by laying the groundwork—explaining the options and making clear that you are concerned about warding off hurt feelings and misconceptions down the line. In the best of families, and even in the worst of them, everyone involved wants that same thing: Clarity.
I echo what Barbara had to say and would add the following. We typically add a 'Casanova' clause in our 2nd marraige emergency Estate Plans. Which allow for added protection by forcing the surving spouse to obtain a prenup in case step-mom's new man (ie. the Casanova) ends up marrying her and trying to take her assets, which were Dad's to begin with.
Plus, even more critical is whether there was an IRA/Retirement Plan which is controlled by ERISA (Federal Law). I've had a couple clients that we were able to protect the interest of step-kids by doing a couple things.
One, you must know that if your Dad died with one of these retirement plans, and he was married longer than a year to the step mom (assume biological Mom has either passed on or there was no divorce decree) these funds will not go to his kids in any way. The only way for step-mom to relinquish these rights is to sign a 'qualified disclaimer' under the ERISA retirement plan. As noted by Barbara it's important to get an attorney involved before it's too late. Too many family's get broken up over money matters like this.
Hope this helps,
Joseph J. Dadich, Esq, CPA, LLM Creator of '20 Minute Emergency Estate Planning Blueprint for Baby Boomer's'tm firstname.lastname@example.org Southfield, MI
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