In Virginia, when someone passes away without a will or other estate planning documents, state law—known as the law of intestacy—determines how assets are distributed. For individuals in a second marriage with children from a prior relationship, the Virginia default rules may not align with their wishes. Without proper estate planning, significant risks arise that could leave the surviving spouse and children with financial and emotional hardships.
Understanding Virginia’s Intestate Rules in Blended Families
Virginia’s intestate succession laws dictate that when someone dies without a will, their assets are divided in a specific manner among their spouse and children. For second marriages, these rules can create unintended consequences:
Spousal Share: In cases where the deceased has children from a previous relationship, the surviving spouse is entitled to only one-third of the estate, leaving the remaining two-thirds to be divided equally among all of the deceased’s children, regardless of age, need, or family dynamics.
Children’s Share: Each child, including those from prior relationships, receives an equal share of the two-thirds portion of the estate. While this may seem fair on the surface, it often fails to account for the nuances of family relationships, needs of minor children, or the surviving spouse’s support requirements.
These default rules are designed to create a fair distribution for traditional families but can fall short in meeting the needs of blended families. For instance, the surviving spouse may find themselves with only a fraction of the assets needed to cover housing, expenses, or medical care. Additionally, children’s shares are distributed without accounting for specific needs, potentially leaving some children financially disadvantaged.
The Hazards of Relying on Virginia’s Default Intestate Rules in a Blended Family
Without a will or trust in place, the consequences of these default rules can be challenging for blended families. Here are some common issues that arise:
Surviving Spouse’s Financial Stability: With only one-third of the estate, the surviving spouse may struggle to cover their financial needs. This can be particularly burdensome if the spouse was financially dependent on the deceased or if they must now cover substantial living or healthcare expenses on limited assets.
Unintended Family Tensions: Dividing the estate among children and a second spouse can create resentment or misunderstandings, particularly if there are differing relationships or financial dynamics within the family. Children from the first marriage may feel protective of their share, while the second spouse may feel neglected or financially vulnerable.
Lack of Personalized Provisions for Children: Virginia’s intestate rules don’t allow for personalized allocations, such as leaving a larger share to a child with special needs or an educational fund for younger children. Without estate planning documents, the opportunity to meet individual children’s specific needs is lost.
Risk of Complex Probate Proceedings: Probate is the court process through which a deceased person’s estate is distributed. Without clear directives, probate can become prolonged and contentious as family members and loved ones navigate the court’s division of assets. This not only leads to delays but may also reduce the estate’s value due to legal fees and court costs.
How Estate Planning Can Protect Blended Families
By creating a customized estate plan, you can ensure that both your spouse and children are protected according to your wishes. Here’s how proper estate planning documents can help:
Customized Asset Distribution: A will or trust allows you to allocate specific assets or proportions of your estate to your spouse and each child according to their needs and your desires. This flexibility can help ensure that your spouse is financially supported while also providing for your children equitably.
Avoiding Probate and Preserving Privacy: Setting up a revocable trust can allow your estate to pass outside of probate, preserving privacy and potentially reducing legal costs. This also ensures a quicker and smoother transfer of assets to your loved ones.
Designating Guardians or Financial Trustees for Minor Children: For parents with minor children, a will or trust enables you to designate a guardian or trustee to manage your children’s inheritance until they reach adulthood. Without this, the court may appoint someone to manage the assets without your input, which may not align with your wishes.
Clear Communication to Prevent Disputes: Having legally binding estate documents can prevent family disputes by clarifying your intentions. Each family member understands their role and share, which can reduce misunderstandings and help preserve family harmony.
The Bottom Line: Take Control of Your Family’s Future
In Virginia, the default intestate rules may not align with your vision for your family. By creating an estate plan, you gain control over how your assets are distributed, protect your spouse’s financial stability, and ensure your children are cared for in a way that reflects their unique needs. Estate planning is not just about financial security; it’s about providing peace of mind and a lasting legacy that respects the blended family you have worked hard to build.
Starting the estate planning process with an experienced attorney can be the first step toward securing a future that reflects your wishes. Your family’s future is too important to leave to chance or default rules—take proactive steps to ensure they are protected in the way you envision.
~Brooke
“Someone’s sitting in the shade today because someone planted a tree a long time ago.”
Warren Buffet