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Blended families in Forest Hills, Rego Park, and Kew Gardens need an estate plan built around each person in the household, because New York’s default rules were not written with a second marriage in mind. A spouse, children from a prior relationship, and stepchildren each stand in a different legal position, and a plan that treats them as one group may not provide for each of them as intended.
Your Surviving Spouse
Under section 5-1.1-A of the New York Estates, Powers and Trusts Law (EPTL), a surviving spouse has a “right of election,” meaning the spouse may claim the greater of $50,000 or one-third of your net estate even if your will leaves less. That share also reaches certain assets outside the will, such as joint accounts and revocable trust property. A spouse can waive this right only through a signed and acknowledged written agreement, often within a prenuptial or postnuptial agreement. That is why I advise remarried couples to address the right of election in writing before anything else is drafted.
Your Children From a Prior Marriage
When assets pass outright to a surviving spouse, the survivor owns them and can change the plan, remarry, or leave everything to his or her own children. A trust can instead give your spouse income, or the right to remain in the family home in Forest Hills Gardens or off Austin Street, for life, with what remains passing to your children. That is why I advise naming a co-trustee or an independent trustee rather than having the surviving spouse serve alone.
Your Stepchildren
If you die without a will, EPTL 4-1.1 divides your estate between your spouse and your own children. A stepchild who was never legally adopted receives nothing, however long you raised that child. A will that leaves property to “my children” is generally read the same way. That is why I advise naming every child and stepchild individually in your will and trust.
Your Former Spouse
Life insurance, retirement accounts, and transfer-on-death accounts pass to the named beneficiary regardless of your will. EPTL 5-1.4 generally revokes a designation in favor of a former spouse after a divorce, but some employer retirement plans are governed by the federal Employee Retirement Income Security Act (ERISA), which can still pay an ex-spouse who remains named on the form. That is why I advise reviewing every beneficiary form after a divorce or remarriage.
Planning Close to Home
My office on Union Turnpike is a short drive from Queens Boulevard, and I regularly work with Forest Hills families whose estates are later handled in the Queens County Surrogate’s Court in Jamaica. Working with a blended family estate planning attorney lets you coordinate your will, trusts, agreements, and beneficiary forms so each person you care for is provided for as you intend.
If your loved one left behind a blended family estate which needs to be settled, contact us today for a free phone consultation.
Contributed by Roman Aminov, Esq, a Queens estate attorney in New York City.
Roman Aminov Estate Law firm of Queens
147-17 Union Tpke, Kew Gardens Hills, NY 11367, United States
P59P+93 Kew Gardens Hills, Queens, NY, USA
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