The Elrod Firm


Could My Kids Be Left Out?

Justin, My current wife and I are both in our second marriages. Each of us brought several children into this marriage. She has been pressuring me to schedule an appointment with an attorney because she read an article that scared her. She thinks that in a situation like ours, the children of one spouse could be completely left out of our estate depending on the order of death. Do we really have anything to worry about?    – Mike

Mike, Your wife is right. Without proper planning, either your children or her children could be unintentionally disinherited. The family left out would depend entirely on which spouse died first.

Most married couples own most of their assets jointly. Both names appear on the deed to the house and the titles to the cars, and their checking, savings, and investments are held in joint accounts. When the first spouse dies, this would not appear to be a problem. In fact, this type of arrangement helps to ensure that no lawyers and no probate court are needed when the first spouse dies.

However, if you have things set up this way and you’re the first to go, your children could have a major problem. Under this plan, when you go, everything will be owned individually by your wife. When she dies, Arkansas law says her assets pass to her biological children, not her stepchildren.

Having a basic will may not get around this problem. Even if you leave your children some assets in your will, that will not override the law regarding joint ownership. Anyway, most married couples leave everything to each other in their wills so we’re right back where we started.

If you want to protect your spouse but also ensure your children are not left out, the best solution I’ve used is a revocable living trust. To read more about planning with trusts (in both simple and complicated situations) order a copy of my book, You Need A Plan, at And call now to set up a strategy session with one of our attorneys at no charge. This is too important to put off.


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