The families of today are very different from the families of yesteryear.
In the not-so-distant past, most households comprised married couples living together. Today, more than 50% of all current households are occupied by singles, same-sex couples, and cohabiting partners. But while society may have changed, many of our laws haven’t.
Non-traditional families are often entitled to the same rights and protections as nuclear families, but they are sometimes excluded and overlooked in the probate codes of both Texas and Arkansas.
Read more to learn about Estate Planning for non-traditional families, or contact Ross & Shoalmire today to speak to an Estate Planning Lawyer and schedule your initial consultation.
The Distinction Between Nuclear and Non-Traditional Families
Although the law doesn’t typically make direct reference to terms like “nuclear family” and “non-traditional family,” the intent behind many Estate Planning-related statutes makes it clear that legislators of generations past expected “a married couple” to consist of a biological man and a biological woman—and rarely, if ever, anything else.
By most definitions, a traditional family would almost always include:
- A husband
- A wife
- The couple’s biological children, if any
Non-traditional families are any family that doesn’t quite fit this model.
Your family could be non-traditional if it has any of the following characteristics:
- An unmarried couple, whether same-sex or opposite-sex.
- A blended family, consisting of a couple and their children from all previous relationships. Blended families may have stepparents, stepchildren, and stepsiblings, but you don’t have to be married or heterosexual to have a blended family.
- A single-parent home with no other adult caretaker present.
- A foster family, or a family with adopted children, or a combination of biological and adopted children. Adopted children usually have all of the same inheritance rights as biological children, but foster kids don’t always count as qualified heirs.
- A married same-sex couple legally has all the same inheritance-related rights and Estate Planning privileges as married opposite-sex couples, but may need to take additional precautions to prevent complications in probate.
Alongside singles, blended families of all types now constitute more than 50% of all households nationwide.
The Biggest Estate Planning Challenges for Non-Traditional Families
Over many years, the law has slowly changed to accommodate these new family structures. However, some of our laws haven’t quite caught up—and, if left unaddressed in your Estate Plan, could leave your loved ones without the inheritance you wanted them to have. Here are some of the biggest estate planning challenges non-traditional families face:
Unmarried Couples
Many Americans cohabitate long-term without ever making plans to tie the knot.
Unfortunately, neither Texas nor Arkansas law has any legal provision that lets unmarried couples automatically set assets aside for their partner. If you don’t have a will, a trust, or a basic estate plan, your estate could be subject to the rules of intestate succession.
Intestate successions only occur when a person passes away without an estate plan.
In an intestate succession, the probate court takes a much more active role in estate administration than it ordinarily would. Instead of letting your partner claim at least enough money to cover rent or pay the mortgage, a judge will look at Texas or Arkansas law and select your heirs without giving your loved one any input.
In general, intestacy laws only provide inheritances to close living relatives—meaning that, without a will or trust, your partner could be left to fend for themselves.
Same-Sex Married Couples
The US Supreme Court legalized same-sex marriage in 2015.
If you and your same-sex partner have married at any point since, you should be entitled to all of the same estate planning protections and privileges as your opposite-sex counterparts. However, if you married before 2015, your estate plan could contain outdated or ineffective provisions that you no longer need as a married couple.
Blended Families
Blended families are the source of many estate planning headaches.
If you have a blended family, you may live alongside:
- Your spouse
- Your spouse’s biological children from a past relationship
- Your biological children from a previous marriage
- Any other children that you have had with your current spouse
Blended families often have it tough because both parents may have very different visions of how best to distribute personally owned assets among children and stepchildren.
If you have full faith in your spouse, you could leave them everything in your will—but, unless your partner sets up a trust before they pass away, your spouse’s children could argue that they’re entitled to a greater share of their mother’s assets, including all those she inherited from you.
The Key Components of Your Estate Plan
An Estate Plan is supposed to reflect your vision for your estate’s future.
However, non-traditional families can’t always rely on the law to back their heirs during a probate contest or estate lawsuit. Even relatives and step-relatives with the best relationships could quickly become frustrated if they don’t think their parents’ preferences are being respected. Sometimes minor omissions and oversights—like inadvertently giving an item of strong sentimental importance to another heir—could trigger a strong reaction.
Since every family is different, every estate plan differs in its details, too. Nonetheless, most estate plans for non-traditional families rely on a key set of legal tools and strategies. Depending on your family’s circumstances, these could include:
A Last Will and Testament
Just about everybody needs a last will and testament.
Unless you have a trust and are confident that your assets won’t wind up in front of a probate court, writing a will is often the only to guarantee that your estate won’t be subject to an intestate succession. You can also use your will to:
- Name heirs
- Direct the distribution of your estate assets
- Name an executor for your estate, even if you aren’t married
- Designate a guardian for a minor child, whose living situation could otherwise be determined by a court should anything happen to you or your partner
Writing a will is typically easier and less time-consuming than setting up a trust.
However, making a will the centerpiece of your estate plan could have unintended consequences. Since most types of assets distributed by a will are subject to probate, any interested party—from an estranged heir to a predatory creditor—could have the right to file a lawsuit against your estate. Even if they don’t win, your executor may have to draw on your estate assets to pay for a Probate Litigation Attorney, leaving less left for your loved ones.
Letters of Instruction
A letter of instruction is an informal and non-binding document that could serve any one of several purposes. These include, but are not limited to, the following:
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An inventory of your assets
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Instructions on how to locate or obtain access to certain assets
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Lists of cryptocurrency keys, account passwords, and other digital information and assets
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Explaining inheritance and disinheritance decisions
Letters of instruction can’t be enforced in court, but they can serve as a general guide and reference for your executor and heirs. They can be especially useful for non-traditional families who wish to clarify details about critical inheritance decisions. If, for example, you and your partner decide to make separate arrangements for your biological and non-biological children, you may want to consider leaving a note to loved ones who might be angry or confused without an explanation.
Advance Care Directives
An advance care directive is a legal document that details your preferences for medical treatment if you ever become incapacitated, whether by injury or illness. You could use an advance care directive to:
- Accept or decline certain types of treatment
- Communicate your end-of-life housing preferences
- Explain if, and under which circumstances, you should be taken off life support
- If you are an organ donor, set conditions on how your organs, tissue, or cadaver can be used
You can also use an advance care directive to nominate a “health care proxy,” or a trusted individual authorized to make medical decisions on your behalf if and when you cannot do so independently. Your health care proxy doesn’t have to be a spouse or a family member—it could be an unmarried partner, a family or friend, or your Estate Planning Lawyer.
Powers of Attorney
A power of attorney is a legal document authorizing somebody else to make decisions and act on your behalf. Powers of attorney come in many forms; some can be conditioned, while others cannot. Some of the most common types of powers of attorney include:
- The health care power of attorney is a legally binding document that lets another person make medical decisions on your behalf.
- The durable financial power of attorney can be used to authorize a trusted friend, relative, or lawyer to manage your financial affairs if you become incapacitated.
- The springing power of attorney only takes effect after a medical professional has determined that you are legally incapacitated.
Non-traditional families benefit from powers of attorney because they can authorize a non-relative to act on your behalf. This is often necessary when family members disagree about the course of treatment or do not approve of you or your partner.
Trusts and Other Asset Protection Tools
A trust is a legal arrangement that lets you, the trustor, transfer control of certain assets to a trustee. The trustee has a binding legal obligation to manage your trust assets in accordance with your wishes and in the best interest of your selected trust beneficiaries.
Trusts are strong tools that can be leveraged to resolve many challenges non-traditional families encounter in estate planning. Some of the most significant advantages of trusts include the following:
- Probate avoidance. Trust assets are not usually subject to probate. This means that your beneficiaries can receive their inheritances without going to court and waiting months for probate proceedings to begin and end.
- Conditioning inheritances. You can set conditions on a trust, deciding how, when, and under which circumstances your beneficiaries should receive distributions.
- Asset protection. Establishing a trust means that you are ceding a measure of control over any assets you transfer to the trust. Depending on how your trust is structured, this allows you to keep your heirs’ inheritances safe from creditors, judgments, and other concerns.
In addition to general revocable and irrevocable trusts, some non-traditional families could benefit from more specific and targeted types, such as special needs and charitable trusts.
