By Lane V. Erickson, Idaho Estate Planning Attorney
The situation comes up all the time. Usually it is a child of a parent who has recently passed away that comes to me asking about the estate, and how the property, money, and other assets in the estate will be divided with the surviving stepparent. Sometimes, however, it is the surviving spouse, who is the step-parent, who comes to me wanting to know what their rights are in the estate of their spouse who recently passed away. Regardless of who it is that comes to me, the question is always the same: Will the step-parent (surviving spouse) or the children inherit the estate?
Dealing with this question is even more likely if the marriage between the step-parent and the parent who passed away was relatively short. The good news is we can help answer this question for you.
For over 70 years, our premier team of Idaho estate planning lawyers have assisted clients in creating their written estate plan. We have also helped family members deal with dividing the estate when a family member or loved one passes away.
The lawyers on our team consists of partners Randy Budge and Lane Erickson and attorneys Nathan Palmer and Dave Bagley. Each of the estate planning lawyers on our team have received the highest ratings for their ethics and legal abilities in helping their clients reach their goals. We have also worked to help families resolve disputes what a loved one passes away. Because of this, we are confident that we can help you too.
The purpose of this article is to discuss the question raised above which is: Who will inherit the estate when there are both a surviving step-parent and children. To answer this question, we will suppose several scenarios. The first will be what happens when there is a written will. Next, we will discuss what happens when there is no written will based on Idaho law. Finally, we will discuss the effect of a pre-nup or post-nup agreement on how property is divided in an estate.
This article is designed as a starting place for you when this circumstance arises in your family. However, no article can anticipate every situation that could exist. For this reason, we strongly encourage you to contact us if you have questions about whether a step-parent, or the surviving children will receive an inheritance from the estate.
When There is a Written WillWhen it comes to determining who will inherit property from an estate, the first thing we discuss is what happens to the estate of a parent when they have a written will. The reason we start with this is because we encourage everyone to get their own estate planning completed. This would include a written last will and testament which is the specific document an individual uses to provide instructions about who will receive the money, property, and other assets in their estate when they pass away. We also encourage our clients to keep their written will current based on the changing circumstances of their lives.
For example, if an individual has a written will and then they get married or have a second marriage these events create a circumstance where their life has changed dramatically. This person now has a new spouse. Because of this, it would be important for this individual to revise or update their written will to match the circumstances of their life after they are married.
When a person does have a written will, their written will specifically controls how the property in their estate is distributed after they pass away. This is the main reason for a written will. Because of this, the individual who creates the will has the ability to decide who will inherit their property. This person also has the ability to change their written will anytime they want.
As a result of this, in most circumstances, when there is a written will, it controls who will receive an inheritance from the estate. If the written will says “my entire estate goes to my spouse” then this is what will happen. Alternatively, if the written will says, “all of my property goes to my children”, then in many circumstances this is also what will happen, especially if the marriage is short before death occurs.
However, Idaho is a community property state. As a result of this, if the marriage has lasted a long time, and property has been bought and sold during the marriage, then it’s possible that even if the will says all the property in the estate goes to the children, Idaho law might prevent this from happening. Again, this is one of the main reasons we encourage individuals to meet with us so that they we can explain and help our clients understand what their rights are.
When There is No Written WillThings are a little different when it comes to dividing up the estate of an individual who passed away without having a written will. When this occurs, Idaho’s intestacy statutes control. I am constantly amazed by the number of people who pass away without an estate plan including a written last will and testament. Idaho’s intestacy statutes exist because of this circumstance.
The word “intestacy” simply means a person passing away without a written will. The intestate statutes create a plan of distribution for every circumstance that exists when a person does not have their own written will. According to the laws of intestacy, a surviving spouse is entitled to receive all community property in the estate. Additionally, the surviving spouse is entitled to receive 50% of any separate property that the decedent owned during the marriage. The remaining 50% automatically goes to the surviving children of the decedent. Because of this, when a person passes away without a will, and there is a step-parent who survived, the fight between the step-parent and the children is usually over whether the property was community property or was separate property.
If you find yourself in this circumstance, make an appointment with us to discuss your circumstances so we can help you determine what your rights are. This is likely the only way that you will be sure that your rights are being protected.
When There is a Pre-Nup or Post-Nup AgreementThe next thing we need to discuss is what happens to an estate when there is a pre-nup or a post-nup agreement. These types of agreements are designed to allow the spouses to declare to themselves, each other, and the entire world the property that each of them owns during the marriage. These types of agreements also often indicate that one spouse has no rights in certain property owned by the other spouse.
In Idaho, these types of agreements specifically require a list of the property that will belong separately to each of the spouses. It also requires a list of property that will be considered community property, which is property owned by both of the spouses equally. Based on the agreement, it becomes clear whether one spouse has complete control over property that they can distribute through their written will.
Again, this article is not designed to answer every question that comes up concerning step parents and children and who will inherit from the estate. Rather, this article is a starting place to help you understand some of the things that should be considered what a stepparent is involved. These issues can often be complicated and difficult. The good news is, we have experience in helping many clients through these problems, and we are certain that we can help you too.
Enlist an Idaho Estate Planning Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.