As an attorney specializing in estate planning, I have new clients fill out what we refer to as our estate planning “questionnaire” before meeting with them. It basically is a form that asks them to insert personal information on the first two pages and financial information on subsequent pages.
Page one asks about marital status and page two asks the potential client to list their children, checking boxes for either biological or adopted.
The questionnaire is helpful, providing me with background information, but it is a one-dimensional picture that often does not show the complete family dynamic.
I am often surprised when clients list their children as their biological children on our form, but then I find out they are really biological to only one of the parents and not legally adopted by the other. Or, when a client specifically does not list a child in that section at all, indicating to me during our meeting that the relationship is “estranged,” as if that somehow means the child is no longer their child from a legal perspective.
Mixed or blended families often flow into the next generation as well. More and more couples are not getting married or are marrying people who have children from previous relationships.
In both scenarios the children might grow up without even knowing they are not a “legal heir” to the people they call “parents” or “grandparents.”
Unfortunately, how we think of our beautifully complex family situations is not how the black and white law views these relationships.
Wisconsin’s law of intestacy is a law that dictates what happens when a person passes away without having put together an estate plan. I often refer to this law as the “default rule.” If you do nothing, the legislature has filled in the blank according to the default rule.
For a married individual, upon death your assets go to your spouse so long as you do not have children from another relationship. This is the default even if your spouse has additional children that are not your children.
If you are married, but your children are not all children of both you and your spouse, your assets will go half to your spouse and the other half of your assets will be distributed directly to your children, even if some of those children are also your spouse’s children.
For unmarried individuals, assets will be divided between their children, period. Legally adopted children are treated the same as biological children. However, in the situation where a child has both of their biological parents still involved, the law does not allow a third party (i.e., a stepparent) to legally adopt the child. The law is black and white that a person can only have two parents.
What happens if you are not married but you have children together? Well, in that case, the default rule says all assets should go to your children, not your significant other.
Even if that significant other is the biological parent of your children? Yes.
What if you are married, but have not legally adopted your spouse’s children? Well, they are not your children if you have not legally adopted them, so they are excluded. What if you are estranged from your children and have not seen them for more than 30 years? Does not matter, they are still your children.
Another area of confusion is how the intestacy rule applies to adoptions. Once a person is “adopted,” the rule of intestacy traces their heirs through the adopted family. Twice this year I have had to break this news to biological siblings. Worse, in both of these cases the closest adopted relatives were strangers to the deceased.
We see this confusion a lot when family members legally adopt other family members. For example, a grandparent legally adopts a grandchild due to an issue with the parent(s). This befuddles the intestacy statute. As strange as it sounds, a parent and aunts/ uncles are actually now siblings and may be legal heirs under the default rule.
Obviously the “default” rule fails to accomplish people’s goals in a variety of situations, but especially in blended and mixed families.
The solution to this problem is to draw up your own rules. You decide who gets your assets and you do that by crafting a well-written estate plan.
Do not allow the default rule to decide for you.
My advice is to sit down and think through these “what-if” scenarios and meet with an estate planner to make sure it is spelled out and there is no room for confusion or interpretation.
Ashley Hawley is an attorney with Ruder Ware.
