His, Hers and Ours. January 2017

“So,” the attorney queried, “are all the kids the children of both of you? Are there any children of either of you that aren’t the children of both of you?”

The husband replied, “I have one from my first marriage, and she” gesturing toward his wife “has two from hers.” She nodded, and interjected, “and we have one together.”

“His, hers and ours,” the attorney observed. “That makes this ‘interesting.’

“Tell me about where your children from your prior marriages grew up. Did you raise them together?”

“No,” the husband replied, “my son was raised by his mother. I was in the military and couldn’t take family to my duty stations. When my first wife and I divorced, I saw him whenever I could, but that wasn’t very often. He’s in Special Forces doing his third tour in the Middle East right now.”

The wife continued, “I raised my kids. Their father died when they were young. They were adults before we met.” She gestured toward her husband. “They like Herb, but he’s not a father figure to them.”

“How old is ‘your’ child?”

“He’s fifteen. We got a surprise when we started dating.“

“How do your kids get along with each other?”

“They’ve met and are cordial, but don’t really know each other. Our sons were all groomsmen at our wedding and seemed to have fun together at the bachelor party.”

“That’s good,” affirmed the attorney. “But this raises some obvious potential issues for what happens when you pass away. The usual ‘happy married couple with children’ estate plan – all to surviving spouse, then to the kids in equal shares – doesn’t always work in a situation like yours.

“How are your assets titled? Who owns what? Who’s supposed to get what?”

The wife began. “I have some money invested from my first husband’s life insurance. I want that to go to my kids from my first marriage. I have a 401(k) from work that I want to go to all three of my kids after Herb dies. And we agreed that Herb’s Army pension would be set up so that I’d get it after he died.

Everything else just goes to the survivor and then to the kids equally.”

“What about Herb’s son from his first marriage?”

Herb responded, “I have a 401(k) from my civilian job that’s supposed to go to him. He shares with the other kids when the second of us dies.”

“What’s the age difference between the two of you?”

Herb promptly said, “Thirteen years. I’m sixty-four, and Michele is fifty-one. I’m going to die first.”

“Thanks,” the attorney responded wryly, “Glad we have that worked out.

“How long have you been married?”

“Three years. My mother made me promise to marry Michele just before she died.”

“Good boy!” interjected Michele. She grinned. “We didn’t see the point in tying the knot in this day and age, but it can make things clearer, and easier. ‘Boyfriend’ is an awkward term for a guy with grey hair.” She tousled his. He cleared his throat pointedly.

“Well. … You have a lot of issues to work through.” The attorney ruminated. “Spousal rights in estates, in the 401(k), in the military pension – these are all state and federal law. We have your minor son to provide for. And then there are the personal issues. One of the sayings in my trade is that ‘you don’t know your family until you’ve shared an inheritance with them.’”

“That’s so true,” Michele interjected. “My brother and I still aren’t on speaking terms after how he treated the rest of us when my mother died. We don’t want our kids like that.”

“That takes some careful planning and good communication,” the lawyer responded. Let’s see …”

Continued next article


Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771

 (301) 829-3778

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