Q: I’ve remarried after my wife passed away seven years ago, and I would like my ‘new’ wife to inherit my total estate once I die. I’ll probably live another 10-plus years and I’m worried that my earlier children will want part of it. My estate will have appreciated substantially by then through investment and other things and it doesn’t seem just that they should benefit from my new wife’s hard work. How do I make sure this happens?
A: You are quite at liberty to leave your entire estate to your new wife. However, family provision legislation in each state allows the court to override a person’s will to make provision for certain family members and dependants. Whilst the law differs slightly in each jurisdiction, children are certainly within the category of ‘claimant’.
Your children would have a statutory right to claim provision from your estate, which they may or may not exercise. This is not to say that if they did claim they would necessarily be successful to any great extent or at all but all the circumstances would be considered by the court including, no doubt, contributions made by your new wife to the estate assets.
Whilst you may not be able to prevent a claim, you may be in a position to restructure your assets in order to limit the impact of a claim. For example can some assets be transferred to joint names and thus pass by survivorship rather than through the will? You should seek advice from a reputable estate planning lawyer.