6 Things to Consider When Estate planning for Your Second Family

TheStreet.com

NEW YORK (TheStreet) -- Estate planning with one family is hard enough. For families with a mix of biological children and stepchildren, first spouses and second spouses, making out an equitable will can seem impossible. No one wants to leave their heirs with a mess to sort out or fight over. Here's a look at the top six things to remember when you're estate planning for a blended family.

1. Keep in mind the length of time your family has been together

If you and your second spouse married when your children were still young, or if you had your own children together, your family is really one big family, says Dan Mielnicki, an estate and trust attorney with Florida-based Berger Singerman.

"If you think of all of your family's kids as 'our' kids, then your will should reflect that," Mielnicki says. "In these situations, you truly have a blended family, and you should proceed with your will as if all your children were your biological children and your second spouse is your first spouse."

If, however, your children were adults or teenagers when you remarried, the dynamics will be completely different. You will need to make separate provisions for your biological children and stepchildren.

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"If the family hasn't been together that long, it's unfair to think that everyone should be treated the same," says Jeff Fishman, founder and managing member of JSF Financial, a concierge wealth management firm in Los Angeles. "How do you expect someone with three kids in their 30s to treat their new spouse's daughter the same as their own children?"

If you still want to make provisions for your stepchildren, the most common way to do that is by giving a bequest to your spouse to delegate as he or she pleases rather a direct bequest to the child, Fishman explains.

2. Provide for your second spouse, but make plans to provide for your children immediately

You should absolutely make provisions for your second spouse, but don't structure your will so your children have to wait for your spouse to die before they get their inheritance, Mielnicki says.

"They are adults. In the normal scheme of things, they would inherit property when you died. Don't make them wait on the death of a much younger spouse to receive their inheritance," he says.

Unfortunately, this can create a lot of tension in families.

"Your children may think, 'My dad's wife is spending too much,' but then the wife may say she's not getting enough. You can see where this could cause so much tension and stress," he says.

3. Make a plan for your home and property

The issue of the family home often opens up a Pandora's box for many families, Fishman says.

"If it's the family home where your children grew up, are they going to be OK with their step-parent living there for the next 30 years? How do you provide for that?" he asks.

Each circumstance is a little different, Mielnicki says. If your children never grew up in the home where you and your spouse live, clearly the home belongs to your spouse. But if your children are still young and they think of your home as their home, the situation must be evaluated.

"Should the surviving spouse be required to leave? They can't be left homeless. If you give the house to your kids, you have to make provisions for your spouse to move out and purchase a new residence. Otherwise you could end up in a situation your kids are saying, 'Dad's dead. Out you go, lady.' I've seen that, and it's bad."

4. Worry less about taxes and more about family harmony

When you're making out your will, don't let taxes become a greater priority than equal distribution, Mielnicki says. For example, some lawyers encourage their clients to minimize taxes on their estate by leaving everything to their spouse. Unfortunately, that may not make your children very happy.

"Yes, if you leave things to your kids, you run the risk of increasing the tax burden on your estate, but it's all going to be taxed eventually," he says. "Imagine how much more of your money will be wasted in litigation if your children end up fighting your spouse for what's theirs. Sometimes it's better to pay a little tax and have everyone content with what they're getting. If people are happy, in the long run it's cheaper."

5. Communicate with everyone, either separately or as a group

Whatever you do, don't take the head-in-the-sand approach, Fishman says.

"Communicate with all the parties involved and let them know what you want to do and how you want to do things," he says. "Some people say, 'I don't want to deal with this confrontation while I am alive,' and to me that is the most selfish, unfair perspective to adopt."

You have to manage your family's expectations. You could sit everyone down in a big family meeting, or pull everyone aside individually. The important thing is that you tell them your perspective and ask their opinion.

"You can say, 'This is how things are structured. If there are any issues, let me know now.' Then give them a few days to think it over and let you know if it's something they can live with," Fishman says.

6. Consult the right experts

To plan your estate properly, you may need a lawyer, a financial planner and a family therapist, but at the very least you'll need the lawyer, Fishman explains.

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"The one person that is 100% necessary is the attorney -- they will draft the trust and estate planning documents. However, oftentimes you only deal with them for documents. They may not be familiar with your family dynamic."

If you want to work with someone who understands your family's unique financial and emotional picture, a financial planner who has worked with you in years' past can help you determine optimal estate planning strategies.

"If you have a longstanding relationship with your financial planner, they're going to understand more about your family dynamic than you think," Fishman says. "They're going to know about your child's spending habits or the questions you may have about your estate."

A therapist can be helpful when it comes to separating emotional issues from more practical money matters. For example, if you own a family business and are having trouble with a succession plan, or if you are unable to have meaningful conversations with your family about money, a therapist can offer guidance.

"They can help facilitate that dialogue."

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