February is for Family

St. Valentine’s Day, the Feast Day of a third century Roman saint, has been celebrating courtly love since 496. Flowers and confections were relative late comers, having become joined to the festivities in 18th-century England. While St. Valentine’s Day is a fun way to express one’s romantic love, as family is created or two families combined, legal issues arise. This blog post addresses some of the estate planning-related legal considerations that apply to families.

Marriage is a contractual arrangement between two legally competent adults. Marriage entails certain duties, rights, and obligations for each partner vis-à-vis the other. Each spouse has the right to support during the marriage as well as certain inheritance rights or claims against the estate of the spouse who died first. The nature of the inheritance rights depends on several factors, including whether the deceased spouse had a child who was not also the child of the surviving spouse. Although one spouse can try to disinherit the other, such disinheritance is not completely effective without the surviving spouse’s consent.

What if an engaged couple, typically in a second or subsequent marriage, but sometimes also in a first marriage, want to disinherit (or limit the inheritance rights of) each other or–in gentler terms–each prefers to leave the bulk of his or her estate to children from a previous marriage, especially when the children were grown and living independently when the current marriage began? How can that plan become effective? Virginia law allows for prenuptial/premarital agreements wherein each prospective spouse can waive claims against the estate of the other prospective spouse as well as waive support from the other. To be enforceable, the agreement must meet specific requirements, including that it is in writing, is voluntary, its terms are not unconscionable, and certain disclosures are made to the other party. Once signed, the agreement can only be voided or modified by a document that follows the same formalities as the original.

If the couple is already married, then they can contract for a marital agreement, which follows the same process as a prenuptial/premarital agreement except that the couple signs it after the marriage, not before.

Sometimes the desire is to expand inheritance rights, not reduce them. This typically arises in a blended family where the stepparent has actively parented his or her stepchild(ren). Although the parent and child may consider themselves a family, because the stepparent is not the stepchild’s ancestor and the stepchild is not the stepparent’s descendant, they are legal strangers to each other under default inheritance laws. The effect of that is without explicitly naming a step-relative to inherit, whether under a Will, a trust, as a beneficiary, etc., the default inheritance rules will bypass them and leave them with nothing. At Promise Law we have had to be the bearers of bad news to stepchildren who dutifully and lovingly cared for a stepparent—often one who had raised them from a young age and who considered the child “one of my own”—that because their stepparent died intestate (without a Will) they will inherit nothing from the probate estate because it must go to the stepparent’s “heirs-at-law,” even if those relatives did not have an ongoing relationship with the deceased. In fact, surviving stepchildren do not even have legal standing to make or participate in funeral arrangements.

Adopted children are the legal descendants of their adoptive parent(s) and have the potential to inherit from an adoptive parent if the adoptive parent dies intestate. Adoptive parents likewise have the potential to inherit from their adopted children should the child predecease the parent. Virginia law allows adult adoption, which would allow stepparents and stepchildren to become legally related to each other (no more “step”) and provide inheritance and other rights available to blood relatives. The adult adoption process requires the consent of the parent and the adult child and that certain other criteria be satisfied.

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