What Blended Families Need to Know About Intestacy and Estate Planning

Category: Estate Planning

Sarah Clifford

“Bruce told me it didn’t matter if he did estate planning,” Dolores* said, thumping into the conference room chair. She looked like she’d stepped straight out of a 1950’s beauty salon, her powder-white hair rolled into thick curls, her lipstick, cotton candy pink, just beginning to feather. “Bruce said that since I’m his wife, it’d all go to me under those— those—“ She waved a hand, the bangles on her wrist rattling “—those laws that say were everything goes if you don’t estate plan.”

“The laws of intestacy?” I asked.

“Exactly. He said that since I’m his wife, I’d get everything under the law of intestacy. I’m not even sure what those girls are trying to do besides stir up trouble.”

I rubbed the back of my neck. Families like Bruce and Dolores were all too common. He’d lost his first wife to cancer, she was a third-time divorcee. They met and married later in life, each with their own set of routines and life experiences, each with their own set of children. Now, Bruce had passed away and the daughters from his first marriage were claiming they owed half of everything.

“Half,” Dolores said again. Another flick of the wrist, another rattle of the bangles. “Can you believe it? They want half. Don’t I get everything?”

I opened my mouth and closed it. Twice. Like a fish. This was never easy news to break.

Having an up-to-date estate plan is always important. You never know when you’re going to die or become incapacitated. That said, estate planning is even more critical for certain groups, blended families among them. Here are two things blended families need to know about estate planning.

1. In the absence of estate planning, the surviving spouse doesn’t get necessarily everything 

The Arizona rules of intestacy dictate where a person’s assets go if they had no estate planning. Usually, this means that the assets go to the next of kin. In the absence of estate planning, if the person who died is a widower with three children, then all his assets will be divided equally between his children. The major exception to this rule is blended families. If a person has both a spouse and children from a prior relationship, half goes to the surviving spouse while the remaining half goes to the children from the prior relationship.

In some situations, the step children end up with a 50% ownership interest in the couple’s residence. This means the surviving spouse will either need to move, purchase their step kid’s interest, or pay rent to the step kids. The surviving spouse may also be required to purchase their furniture and household goods back from the deceased spouse’s Estate.

2. But surviving spouse does get to be in charge

When you do estate planning, you’ll be asked to name a person to be responsible for handling your funeral, paying final debts and getting your assets into the hands of the people who are supposed to have them. This person is called your “personal representative” or “trustee.”

If you don’t name someone through a Will or a Trust, Arizona statute will give priority to certain groups of people. First priority is given to the surviving spouse. Second priority is given to the biological children. The surviving spouse must affirmatively decline the nomination before any of the biological children can serve.

Practically speaking, this means that, while the surviving spouse doesn’t “get everything,” they do have some control over how the Estate is managed. That said, the surviving spouse does have a fiduciary duty to all the heirs of the Estate. This means that they can’t favor themselves over the biological children. If they can’t afford to live in the house, the house must be sold, but the surviving spouse will have some control over timing, the listing agent, etc.

I don’t like those results. What can I do? 

 Avoiding intestacy is easy—just plan. Meet with an attorney to discuss your options and discuss your wishes with both your children and your spouse. An ounce of prevention now can prevent a pound of pain for your loved ones in the future.


*Names and identifying details have been changed