“Can I Leave My Stepchildren Nothing if My Husband Dies?”

This recent headline caught our attention and reminded us of Candace. We met Candace in 2011 as part of a project studying mid-life adults whose parent or stepparent died a year prior to our interviews.

Candace’s parents divorced when she was nine years old, and her father, Randy, remarried soon after. Candace was quick to confess that over the last 30 years she and her stepmother never got along. Candace complained that as a child her stepmother required her to cook, clean, and babysit her half-brother. She said she “felt like Cinderella with a wicked stepmother.”

As an adult, Candace kept her distance from her stepmother, but that became increasingly difficult when her father became seriously ill. Her stepmother made her feel like an intruder at the hospital bedside in his final weeks of life. As his death neared, Candace began wondering what she might inherit from him. Her father had always reassured her that she would be taken care of, but after his death, she said that she learned that his words were basically, “like a pretend trust.” She continued,

It’s called a trust, but they don’t actually exist. In other words, if [his second wife] was a decent human being she could say, ‘Okay. We’re gonna take everything that was your dad’s—property, business, assets, whatever—and I’ll give you…a fair amount’…but she doesn’t have to and she’s not gonna.

As Candace discovered, precatory language—also known as wishful thinking or promising—does not create a legally enforceable obligation. Because her father had no will or trust in place, after his death, default rules in their state allowed her stepmother to retain control over her father’s property. Her stepmother tried to give Candace a few sentimental jewelry items, but she rejected these efforts, angry that her stepmother had literally and figuratively locked her out of what she thought was her rightful inheritance. The relationship between Candace and her stepmother was still sour a year after her father’s death.

Approximately 55 percent of Americans have no estate planning documents in place. In the absence of a will or trust, default rules come into play. These rules may provide primary benefits to the surviving spouse of the deceased, but the relationship between the surviving spouse and stepchildren can be complicated and fraught with conflict. Baby Boomers, the very generation that needs to think in earnest about estate planning, hold the highest record of both divorce and remarriage. The divorce rate continues to rise for Boomers, leading to the “gray divorce” phenomenon, and remarriage rates are the highest for those over 55 years of age. As more and more surviving spouses are stepparents, planning and explicit communication related to who is and who is not family can help prevent the type of confusion and hurt that Candace experienced.

Naming Who IS Family

Formal planning can help in naming who is family, even after a divorce would legally sever those familial ties. Our two-hour, qualitative interviews with over 60 grown children and stepchildren helped us better understand the medical, financial, and emotional journey of caring and grieving in today’s modern families. A terminally ill Baby Boomer parent may be in a first and only marriage, never married and single, never married and with a current partner, divorced and single, or divorced and remarried. Each family configuration shapes what role a grown child can play in the caregiving constellation. In terms of inheritance, we found that divorce did not always sever emotional ties and that planning made a big difference when the dying parent wanted to remember not only his current spouse and grown child, but also a former spouse.

Troy’s parents divorced when he was in elementary school. Both parents quickly remarried. As an adult, Troy worked closely with his stepmother to help care for his father living with chronic heart disease. They were together in the emergency room when his father died after a heart attack. They planned the funeral together and sat together for the services. In the absence of a will, Troy’s mother would have inherited nothing, and his stepmother would have inherited everything from his father’s estate. But his father had drafted a will that included not only Troy but also Troy’s mother, his ex-spouse. His father honored everyone who had been family to him in his life, regardless of divorce.

Naming Who Is NOT Family

Formal planning can also assist an individual in naming who is no longer considered family. In estate planning documents, such as a life insurance policy, a spouse and children can be listed as beneficiaries. Financial and legal experts advise couples to protect their assets when divorcing so that the ex-spouse does not inherit simply because the deceased failed to remove the ex-spouse’s name from the list of beneficiaries. However, many people can’t even find the life insurance policy in the first place, let alone take the time to update the list of beneficiaries. A number of states have laws that automatically revoke a life insurance beneficiary designation who is a former spouse, although not all states do so.

As far as Candace knew, her father did not make financial provisions for her in his separation agreement, in a life insurance policy, or a trust or will. She remembered his stated intent to support her, but those wishes were not followed up by action. In a family where the relationship between his wife and his grown children was already tense, her father’s formal planning may not have repaired the relationship, but at the very least, it could have kept money from being one more point of contention. Most of the individuals we interviewed in our study did not care about the amount of money they inherited, but they did care about making the distribution process “fair.”

Our study also found that the death of a loved one forced many people to reassess their own character and answer questions, such as “What kind of person am I? What legacy will my life leave?” Being a gracious and fair person was more valuable than money, a parent’s house, or a vehicle. Most grown children would rather “be a family” than “be rich.” In divorced and remarried families, formally planning and communicating the goals of one’s plans are critical step in being and staying a family. It is not about the money: it’s about being treated as equal to a parent’s new family.*

*Disclaimer: This post is for general informational purposes only and not for the purpose of providing legal advice. You should contact an attorney for advice on preparing or updating a will, or for any other legal issue.

Amy Ziettlow is ordained in the mainline Evangelical Lutheran Church of America and serves as pastor of Holy Cross Lutheran Church in Decatur, IL. Naomi Cahn is the Harold H. Greene Professor of Law at George Washington University Law School. They are the co-authors of the forthcoming book, Homeward Bound: Modern Families, Elder Care, & Loss (Oxford University Press 2017).