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I have been married more than once. How should I plan the inheritance for my spouse, children and stepchildren?

This question is very client specific.

Sometimes clients desire that stepchildren be treated no differently than the client’s biological children. Other clients sometimes want only their children to receive their property. Thus, to answer this question it is necessary for the estate planning attorney to understand the family dynamics. Further, it is important for the client to understand the legal presumptions regarding stepchildren. While this blog post cannot address particular family dynamics, it can address the treatment of second marriages and stepchildren according to Indiana law.

Indiana Code § 29-1-2-1 provides the distribution of one’s estate if a person dies without a will.

This statute informs us that when the decedent (1) is survived by a spouse of a second or subsequent marriage, (2) has children from a previous marriage, and (3) has no children from the current marriage, then the surviving spouse is entitled to 25% of the decedent’s estate. The decedent’s children, then, are entitled to the remaining 75% of the decedent’s estate.

When the decedent (1) is survived by a spouse of a second or subsequent marriage and (2) is also survived by at least one child, then the surviving spouse is entitled to 50% of the decedent’s estate. The decedent’s child(ren), then, are entitled to the remaining 50% of the decedent’s estate.

There is no provision in the Indiana Code that would entitle stepchildren to proceeds of any decedent’s estate if the decedent died without a will.

The rules briefly described above provide the basis for estate planning decisions. In many situations, clients do not prefer that the surviving spouse receive merely 25% or 50% of the decedent’s estate. Often clients wish for the surviving spouse to receive all of the decedent’s estate. Or clients wish to leave an inheritance to stepchildren and children equally. The family dynamics will determine the direction of the estate planning.

The main takeaway for the above rules is this: If the client does not desire the default results, then the client needs a will to CHANGE THE DEFAULT RULES.