By Ronald A. Fatoullah, Esq. and Eva Schwechter, J.D.
Estate planning is important for every family. However, planning is especially critical for "non-traditional" family units. While traditional families are protected to a certain extent by laws and statutes, non-traditional families must be more proactive in their estate planning, to ensure loved ones are protected and provided for.
One example of laws that protect the traditional family are the laws of intestacy. The laws of intestacy are the laws governing the circumstance where one passes away without a will or trust. These laws, which vary by state, divide the decedent's assets according to a pre-determined list, which includes a spouse, biological children, parents, siblings, etc. In a traditional family, where both spouses are in their first marriage with common biological children, the estate will be split in predetermined sums between the surviving spouse and children, despite the absence of a will.
A non-traditional family unit, including unmarried couples, couples who have not adopted each other's children, or those who have had children with more than one partner, may be negatively affected by the intestacy rules. The lack of protection for non-traditional family units necessitates awareness of the need for estate planning for these modern, complex family units.
Take the example of Adam and Eve. Adam and Eve are an unmarried couple who have been living together for 20 years. Adam has one son from a previous marriage, and Eve has one daughter from a previous marriage; they have no children together. If Adam were to die without a will or trust, all of his assets would go to his son, without taking Eve and her daughter into account. Even if Adam and Eve were married but had not adopted each other's children, then Adam's estate would be divided among his son and Eve, leaving nothing to Eve's daughter.
One way to avoid this situation is to draft a will, stating one's specific desires with regard to one's assets. In Adam's will, he could leave all of his assets to his partner, Eve. Alternatively, he could divide his assets between Eve, his son, and perhaps Eve's daughter.
Another option is to create a trust. A trust holds assets and can specify exactly how and when the assets pass to the particular beneficiaries. By establishing a trust, each spouse may provide for his or her surviving spouse during their lifetime, perhaps through a distribution of income and/or principal, and be assured that his or her children will also be taken care of. In contrast to a will, the trust will avoid the costly and time-consuming probate process.
Adam and Eve could create trusts, leaving all assets in trust for the use of the surviving spouse, with the remainder to be divided equally amongst both children. This ensures that Eve, as well as both of their respective children, are provided for according to both parents' wishes.
While there are always significant advantages to executing a last will and testament and/or a trust, it is imperative for non-traditional families to execute these documents for the benefit of their loved ones so that the unintended consequences of intestacy can be avoided. Discussing one's personal situation and circumstances with an experienced estate planning attorney is helpful in determining the best plan for your particular family.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Eva Schwechter is an associate at the firm. She recently graduated from Hofstra University School of Law, where she was a member of the Hofstra Law Review. The law firm can be reached at 718-261-1700, 516-466-4422, or toll-free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also the co-founder of JR Wealth Advisors, LLC. The wealth management firm can be reached at 516-466-3300 or 800-353-3775.
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