One of the most difficult situations for testators who are making wills is to determine how their estate will be shared if they and their spouse each have children from a previous marriage.

If the testator leaves his or her entire estate to their surviving spouse and on his or her death the estate is to be shared between all of the surviving children the surviving spouse may change their will later cutting out the testator’s children.

In order to prevent this couples can enter into a contract wherein they agree to not change their wills after the first of them dies. This can be problematic however because unforeseen circumstances may arise which would make changing a will appropriate. An example of this would be if one of the couples’ children requires financial assistance for some reason and the other children are financially secure. Another example would be if the surviving spouse remarries and has more children and wishes to include these children as beneficiaries.

If possible it is better to assume that the surviving spouse may wish to change their will and to plan accordingly. Any gift to a surviving spouse would be their property to do with as they see fit. Property can be left in trust so that the surviving spouse has income for their lifetime but the capital is left to the testator’s children on the surviving spouse’s death.

If a testator has life insurance it can be useful to divide their estate such that their assets go to their surviving spouse either as an outright gift or in a trust and the life insurance is left to their children. This will only work if the testator’s estate is large enough to provide for the needs of the surviving spouse.

Deborah Todd Family Law Victoria
Deborah A. Todd