Prior marriages may complicate each spouse’s will provisions

by | May 25, 2016 | Estate Planning |

Standard formulas that are generally used in Texas by a married couple to divide their assets at death tend to fall away when one or both spouses have a prior marriage and separate children from that relationship. Usually, where a couple has three children, for example, they will leave their estates mutually to each other and then to their children in three equal shares. However, where one or both of them also have children from a prior marriage, each person’s last will and testament tends to depart from the standard formula in order to recognize all of their children for sharing.

In the latter case, the tendency is for a spouse to leave less than all of his or her assets to the other, while leaving a reasonable portion to the children of the prior marriage. In that way, the prior children may be included along with the children of the current marriage for sharing in the assets. However, that pattern may not be efficient where the couple have only a modest amount of total assets that are all jointly owned.

Jointly owned marital property automatically passes to the surviving spouse by operation of law. Thus, where there are only modest assets, perhaps centered around the marital home, the surviving spouse will generally inherit the total assets but may, by agreement, make a will that takes into account the other spouse’s separate children. This arrangement entails a matter of trust that the surviving spouse will not change the will after the other spouse dies.

Generally, where the relations and communications within the extended family are consistently cordial, the spouses can trust each other to honor the distributions in each one’s will. In some instances, special arrangements can be made through one’s will or other estate planning tools to guarantee distribution of a share to prior children. Due to the virtually endless permeations that can exist, it is best for the couple to consult with an experienced estate planning attorney who can comprehensively outline the various options open to each spouse under Texas law.

Source:, “Estate Planning: Unequal distributions that are fair”, Dennis Fordham, May 14, 2016


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