Probate and Second Marriages: Where There’s Not a Will There Will be Litigation

Terry Jessop & Bitner Newsletter

Issue 24, August 2015

There is a truism in the realm of probate and estate planning that where you fail to plan, the State will plan for you. The law offers everyone the opportunity to dictate how their property and assets will be administered at their death. These options range from simple to complex, from a basic will to a detailed trust or family limited partnership. Regardless of what option you choose, the best advice is to do something rather than nothing, because doing nothing only ensures that you have no say in how your estate is administered and distributed. Doing nothing means your estate will be distributed as dictated by the legislature and the courts.

Tradition! - Or Not.

For traditional families (i.e., husband, wife and children), a typical estate plan usually mirrors the distribution scheme provided for by the Utah Probate Code. Specifically, the estate passes to the surviving spouse, and then to the children. So why do estate planning? Because life is unpredictable. Many families do not fit the traditional mold, even if they start out that way. Much probate litigation occurs in the context of non-traditional, blended families and stepchildren. We all hope that our families will be able to handle our passing, get along, and work together, but experience shows that the lack of an estate plan often results in people looking out for their own interests rather than honoring the deceased's wishes.

Share and Share Alike?

Two commonly misunderstood issues in probate litigation involve either the "spousal elective share" or the "spousal intestate share." The spousal elective share allows a surviving spouse to receive a specified amount from the estate even though he or she was omitted from the will or was intentionally disinherited. The exact amount is the subject of a complex calculation, but, generally, it is one third of the augmented estate with a minimum of $75,000. Similarly, the spousal intestate share provides that where you are survived by your spouse as well as children who are not descendants of your spouse (e.g., your spouse's stepchildren, including your own children from a prior marriage) the surviving spouse is entitled to the first $75,000 from the estate as well as one half of the remaining property of the estate.

Disputes often arise in connection with estates that are valued at less than a hundred thousand dollars, which may leave much less for your children than you intended, or might result in more going to someone you might have intended get little or nothing.

Distribution by Default

In addition to these special spousal provisions, the law also dictates to whom property will pass in the event you die without a will. Generally, property passes in the following order: (1) spouse; (2) descendants; (3) parents; (4) siblings; (5) grandparents; (6) aunts/uncles; (7) cousins. Again, your property may pass to a member of these classes against your wishes. You may prefer that your estate benefit a school, church, hospital, or other charity prior to being awarded to your Uncle Joe, whom you've not spoken to in decades, not since he insulted you at the family reunion.

The best way to ensure your property goes where you want at your death and to avoid potentially costly battles that only serve to diminish the value of the estate is to have an estate plan. We can help you review the options, decide which one fits your intentions best and put that plan in place.

© Terry Jessop & Bitner August 2015