Second Marriage and Intestacy (dying without a Will)

October 23, 2015
Lindsay M. Schoeneberger

I’m sure you’ve heard or used the phrase, “hit by a bus.”  Have you ever known anyone who was hit by a bus?  How did that phrase become the standard for conveying a catastrophic injury?  A staff editor at the New York times offers some explanations here.  Now that you know some of the possible origins of this catastrophic cliché, I will employ it here.  Let’s say for example, you are in your second marriage and have two children from your first.  You are hit by a bus and succumb to your injuries.  You have no Will, but you and your spouse have talked about it and you are confident that he or she will follow your wishes.  Those wishes happen to be that your spouse gets everything, but will continue to take care of your children.  Or perhaps that everything will go to your kids.  Or a myriad of other scenarios. As long as you have thought about it and properly communicated it to your spouse, that is all you need right?  I mean you married your spouse, you trust them.  Everything will be fine, right? Unfortunately, more often than not, that is wrong.

Trusting your spouse to follow through with your wishes does not guarantee that your wishes can or will be followed.  First, sadly, there is no guarantee that your spouse will actually follow your wishes.  Even if you took the extra step to communicate what you wanted to happen with your assets on your death to another family member or trust friend, if you did not draft a Will, there is no way to legally enforce those wishes.

Now I know some of you are thinking “But my spouse is different. He or she is definitely trustworthy!  He or she would NEVER do anything dishonest.”  I believe you.  And thankfully, there are good people out there that are true to their word.  Unfortunately, the distribution of your estate is not up to your spouse when you die without a Will.  Your estate will be distributed according to the intestacy statute, even if that is the exact opposite of what you wanted.  In the scenario described above, the probate assets would pass as follows: one half to the spouse, and one quarter to each surviving child.  You would have no control over how your children inherited the assets either.  If they are minors, it is likely they will not have access to it until age 18, at which time they will inherit all of it, whether they are mature enough to handle it or not.  If they are over 18 at your death, they will inherit it outright.  If you die intestate, you also have no control over who will care for your children after your death.  In most cases, the remaining parent will generally become the sole caregiver.  But what if you were the remaining parent or the remaining parent is not able to care for your child, then what?  These are just a few of the concerns and pitfalls that come with dying intestate.  If you have assets, you should have a Will.  If you have loved ones, you should have a Will.  If you have children, you DEFINITELY should have a Will.  And, always look both ways before you cross the street.

Lindsay Schoeneberger is an attorney at Russell, Krafft and Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Estate Planning.