Written by attorney, Charles McElwee

Many couples have children from prior relationships.  Some couples with children are in long term relationships, but have never married.  Other couples, although married and having only children from their marriage to each other, may own property both as community property and as separate property.  If you fall into any of these categories, pause to consider how the two of you want to provide for all of your children upon the death of one or both of you. 


Consider these examples:


1.  Ramon and Lucia are married and each has children from a prior marriage, but they have no children together.   They both have wills that say the surviving spouse inherits everything, or if that spouse has already passed away, then to the Testator’s children.


Wills not thoughtfully prepared can result in a simple distribution of everything to the survivor when the first member of a couple dies. Then the remaining combined property of both members of the couple may pass from the estate of the survivor to only that person’s children, leaving nothing for the children of the member of the couple who died first. 


In this example, if Ramon died first, Lucia would inherit all of his estate.  Upon Lucia’s death her children would inherit the whole estate, leaving nothing for Ramon’s children.


2.  Sylvia and Charles have minor children together, but are not married. Neither one has a will.


Under the intestacy laws, the children of the deceased member of an unmarried couple will receive everything belonging to the deceased parent.         


If Sylvia were to die before Thomas, all of her assets would pass to the children.  This could leave Thomas without enough assets to care for the children until they are grown, or he might have to go the court to be named trustee to manage Sylvia’s property for their children’s benefit until the children are grown.


3.  Delores and Matthew are married with minor children.   Matthew owns as his separate property – some valuable real estate that he inherited. 


The laws of intestate succession can lead to some confusing results for married couples who have both community and separate property.  Community property passes entirely to the surviving spouse, while separate property passes in the amount of three quarters to surviving descendants and one quarter to the surviving spouse.  The children of an unmarried couple would likely receive everything belonging to their parent when that member of the couple dies and the surviving member of the couple would receive nothing.


If Matthew dies before Catherine, but has no will, three-fourths of his real estate will pass directly to his children under the intestacy laws.  In order to manage this property, Catherine would have to go to court and be appointed trustee over the real estate for her children’s benefit.


The best way to make sure your property is received by the right people in your life is for the two of you to discuss how you would like each other to make provision for family and survivors of both of you when the last one of you dies.  That way you will each have provisions in your own will or trust to take care of the other person’s family as well as your own, because if you are the last to die your estate will most likely consist of elements of property that were owned in the past by both of you.