Sometimes, the concept of “family” can be a difficult one to deal with. No matter if you hold the traditional view that marriage is a union of one man and one woman who should stay married ’til death do they part, or you believe in something vastly different, there’s no denying that the concept of “family,” as society at large sees it, has dramatically evolved over the past 20 years. The days of white-picket fences and rows of single-family homes with a husband, wife, 2 kids and a dog have given way to neighborhoods that include same-gender couples, families composed of different ethnicities and, commonly, families that are made up of people in their second or third marriages (many of whom have kids from other marriages). Though opinions tend to be adamant on these issues, more often than not, when legal problems arise, the problems have nothing to do with the perceived morality of the union and almost everything to do with the legal relationships of the people in the family.
In Texas, the law is usually simple. If you have valid estate planning documents (e.g. a Last Will & Testament, Powers of Attorney, or a Guardianship Declaration), in nearly every instance, we follow the preferences you outlined in the documents. But, if you don’t have an estate plan, it can be a big mess. Consider this (very common) scenario: You are on your second marriage (let’s say you’ve only been married a few months). You have two adult children from your first marriage that “kind-of” get along with your spouse (there’s a gentle peace, but no love is lost). You get sick, can’t make decisions and have no estate planning. Now, what? Who is in charge? Let’s take it a step further: after a short stay in the hospital, you die. Again, you have no Last Will. Who gets your stuff?
In each of these situations, many would presume the spouse’s iron-clad right to make decisions and inherit all of the property of the deceased. But, it’s not always true. First, in the situation in which you were hospitalized and alive, your children may not agree with the decisions of your spouse and hire a lawyer to ask a court to give them control over you and your medical decisions (in Texas, this is known as “Guardianship of the Person”). Though your spouse would legally have a right to be named as a guardian in priority over your children, that right isn’t always 100%, and occasionally the children can be appointed. Likewise, when you die, not only do you have to worry about who gets control of your estate but, more importantly, your spouse and children are required to share your property. Even in situations where everyone gets along perfectly, this can be stressful but if you add any amount of disdain for one another, mistrust, or hurt feelings the family can be sitting on a powder keg that can blow unexpectedly. Fortunately, there are simple solutions.
First, as a rule, if you have children outside of your current marriage (meaning: kids from a prior relationship, etc.), you should have a formal, written estate plan prepared immediately by a qualified lawyer. Don’t put the burden on your family to work it out themselves. In many cases, that doesn’t work out well and can cost tens of thousands in legal fees.
Second, once you have your estate plan prepared, consider holding a family conference to discuss your desires and explain the plan to your children. While many clients choose not to do this (either due to the desire to avoid immediate conflict or to maintain confidentiality), the conference can disarm other members of the family and allow them to learn your wishes directly from you. Isn’t an hour of uncomfortable discussion better than leaving your spouse with months of arguing, stress and legal bills?
Finally, if you’re reading this and currently engaged in a dispute such as the one explained above, the single best thing you can do to protect your spouse, parent or interests now is to call a qualified lawyer who is experienced in this field of law. Depending on your situation, the best thing to do might be to fight it out – or – it might be to set aside bad feelings and try to work out the disagreements. Most experienced attorneys are very familiar with (and often use) both strategies.
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ATTORNEY CHRIS PARVIN is Board Certified in Estate Planning & Probate Law by the Texas Board of Legal Specialization. Mr. Parvin is the Managing Partner of the Dallas, Texas law firm of Parvin Law Group, P.C. and serves as an Adjunct Professor of Law at Texas A&M University School of Law. Mr. Parvin can be reached by email at firstname.lastname@example.org.
Parvin Law Group, P.C. is a Concierge Law Firm in Dallas, Texas with attorneys practicing law in the fields of Estate Planning, Probate, Business Law and Family Law.