Though I’m a divorce and family law attorney, I occasionally draft simple wills for my former clients, and particularly after divorce when they want to configure who gets what in the event of passing on.
In addition to being a lawyer, I’m also a proud stepmom to a high school senior here in New Jersey. My husband has 50/50 custody, and we don’t have any additional children, so I’ve developed a very close relationship with my stepson. The intersection between being a stepmom and being a lawyer is an interesting one, and it means that I’m constantly thinking about how the laws affect me as a stepmom and my cherub of a stepson.
But first, let’s talk about death! That’s fun, right? Most of us don’t want to think about death or dying, and even I’ve begun drafting a will and then stopped midway—several times. Thinking about death can be really unpleasant, especially when we’re young and happy, and living our best lives.
We don’t like to think about our own mortality. We don’t like to think about the “what ifs,” but the reality is that we will die, and we can have a big choice ahead of us: die with a will (“testate”) or die without a will (“intestate”). When you execute a will, you get the privilege of specifically pinpointing who gets what, in what percentage, and how (should it be in a trust?)—and sometimes even who doesn’t get jack squat (that’s called being “disinherited” and you may want to disinherit someone; it’s OK).
However, when you die intestate—without a will—then the courts usually get involved, and they look at your lineage, bloodline, and whether you’re married or not, in order to figure out who inherits and who doesn’t. In that situation, you put your family in the awkward and difficult position of mourning your loss and simultaneously cursing you for leaving them zero direction about whether you want open or closed casket, whether that casket will have glitter (yes, it’s real!), whether you wanted cremation, to be turned into a crystal or to be planted with a tree — the list goes on, and of course, what to do with your “stuff” and your estate. In that situation, people who you care about and love, and who you want to provide for after your passing may be left out.
As a stepmom myself, the first thing that comes to mind is, “Wait, what? You mean if me and my husband are jetting off to Key West for a fun weekend and we die in a crash, my stepson would get nothing?” Yep. Zip. Zero. Nada. We stepmoms often hold down the fort. For many of us, we do exactly what we do with our biokids with our stepkids. We attend and participate in school conferences, take them to doctors appointments, teach them how to drive, and maybe even have them on our auto or health insurance—but none of this gives your stepchild any legal rights to your estate. If you die intestate with one biochild and one stepchild, guess who gets nothing? (Yup, the step.) Ugh. Talk about adding insult to injury. If in your heart of hearts this result doesn’t seem fair, nice, or reasonable, it’s time to get going on a will! (While you’re at it, get your spouse to have one drafted, too!)
In the vast majority of wills I’ve drafted, the wife leaves her estate to her husband and should the unthinkable occur and he dies in the same common accident or within a reasonable amount of time (broken heart, am I right?), then the estate would go to your offspring (“per stirpes,” or in equal shares—think: three kids, each kid gets one-third, five kids, each kid gets one-fifth). However, this is premised on the kids being your biological or legally adopted children.
This is why you’re going to want to include your stepchildren by name and specify what and how they are to inherit. For example, you may state that it’s your desire and intent that biokid one, biokid two, and stepkid one, inherit equal thirds of the estate. Or, biokid one to receive 50% and stepkid one to receive 25% and stepkid two to receive 25%. If your children or stepchildren are young, it would be wise to consider a provision that places their share in trust, naming a trustee to manage and govern those finances. It may also make sense to include distributions for good reasons like education, medical care, or a safe, reliable, and reasonably-priced vehicle (think Honda, not Masserati) for a teen driver, in addition to specifying ages for lump-sum distributions.
It’s important to find a knowledgeable and experienced estate attorney in your state who can transfer your wishes into your last will and testament. If you already have a will, review it and see whether it provides in the way you want it to, knowing that your stepchildren aren’t legally viewed the same as biological or adopted children. Make sure that your will represents your current reality, especially if you’ve recently divorced.
Finally, it’s best for your spouse to also have a very specific will, and you should plan to sit down and discuss these issues with him or her. What are their intentions with regard to your relationship with your stepchild? Provided the biological parents share joint legal custody, continued contact with your stepchild post-death of your spouse would be at the discretion of the remaining bioparent (his or her ex!). Because there are a number of us stepmoms who have good relationships with our step kids, but may not have a great relationship with their other bioparent, you may have to seek court intervention should you wish to have visits after your spouse’s death.
This could be an uphill battle, and rights and processes differ by state, so be sure to consult with a trusted attorney in the proper jurisdiction. Use the last will and testament to express that it’s your spouse’s dying wish, and your intent, that the stepparent has continued contact with the stepchildren. Express clearly and specifically what role the stepparent has played in the life of the children (caretaker and provider), and that the wish would be to maintain a relationship between the stepparent and the children. These battles would be easier to fight with the ammunition of a parent’s last dying wish that a child remain in contact with a spouse who embraced the parental role and was actively engaged in the child’s life.
Here’s the bottom line: If you’re a stepparent, it’s imperative to get a will—not later, now. Speak with a real, live, attorney in the county and state you reside in who can help you develop a last will and testament that expresses your true intentions.
Kristin M. Lis, Esq. a senior associate at the law firm of Petrelli Previtera, LLC in southern New Jersey, with a focus on divorce and family law. She is a trained mediator and serves as a divorce resolution panelist through the courts—and she just drafted her and her husband’s wills after writing this blog.
If you need assistance with a family law matter, our attorneys at Petrelli Previtera, LLC can provide you with the professional advice you need to make an educated decision. Schedule a consultation with one of our attorneys today.