The concept of a blended family was once the exception to the norm in America. In today’s modern world, however, blended families are becoming more common than “traditional” families. If you are part of a blended family, you may have “your children”, “his/her children” and “our children”. Ideally, you and your spouse have managed to integrate all the children into the family unit and do not differentiate on a day to day basis. The law, however, does still differentiate. As a result, estate planning takes on a heightened importance.
If you have children from a previous relationship, the other biological parent may have legal rights to the children. If paternity was established, then the other parent likely has legal rights to the child, even if he or she does not exercise those rights. If, for example, your children have lived with you and your new spouse for years without any contact with the other parent, the other parent may still have legal rights to the children in the event of your death. If your desire is for your children to continue to live with your current spouse in the event of your death, you need to make this wish clear to your estate planning attorney while completing your estate plan.
In most cases, a court will look to the non-custodial parent first upon the death of a parent when considering who should have custody of the children. If you feel the other parent is not fit to have custody of your children, or if your children have had no contact with the parent, then you need to discuss your options with an experienced estate planning attorney now, before a court is forced to make decisions after the fact.
If the other parent is no longer living, this does not necessarily mean that your spouse will be given custody of your children either. Again, your wishes will be considered by a court, but only if you express them in the proper legal form. A legal adoption or naming your spouse as guardian.