Blended families, which often include stepchildren, are becoming increasingly common, reflecting the diversity of modern relationships and family structures. However, with this change comes the complexity of estate planning. For blended families—where partners bring children from previous relationships, or new children are born into the family—ensuring fairness and clarity in a Will is essential to avoid misunderstandings and disputes.
In this blog, we’ll explore the challenges of drafting Wills for blended families, why it’s crucial to plan ahead, and practical steps to secure fair outcomes for all parties involved.
What are intestacy laws?
For any family, a Will is an essential tool to ensure your wishes are followed after you pass away. For blended families, however, the stakes are even higher. Without a clear and legally valid Will in place, your estate will be distributed according to intestacy laws.
Intestacy laws come into place when a person passes away without a legally binding Will in place. The court follows a strict formula to determine who inherits what, which may not align with your family’s specific needs or your specific wants. For blended families, this often results in unintended consequences. For example, your current spouse may receive the majority of your estate, which could leave your children from a previous relationship with little to no inheritance, or your stepchildren may not receive anything, no matter the closeness or length of your relationship.
Not only can this create tension amongst family members, it can also lead to emotionally and financially strenuous litigation between your loved ones. Planning ahead ensures that your assets are distributed fairly and that your wishes reflect the unique dynamics of your blended family.
Things to consider when making a Will as a blended family
Creating a Will for a blended family requires careful thought and planning to ensure fairness and avoid potential disputes. Here are key considerations:
- Balancing interests between partners and children
One of the most significant challenges is dividing assets between your partner and your children. You may wish to ensure your current partner has enough to maintain their quality of life while still leaving a meaningful inheritance for your children. - Providing for biological and stepchildren
Blended families often include both biological children and stepchildren. If you don’t explicitly include stepchildren in your Will, they may not receive anything, as intestacy laws generally don’t recognise stepchildren as automatic beneficiaries. - Dealing with sentimental assets
Sentimental items—such as family heirlooms, jewellery or photo collections—can be a source of contention. To avoid emotional disputes, specify in your Will who will inherit these items. - Handling complex financial structures
Blended families frequently have intricate financial arrangements, including jointly owned properties, family trusts or superannuation accounts. These can complicate how your estate is distributed, so they must be carefully addressed in your Will.
Strategies for fair estate planning
To ensure your Will reflects the unique dynamics of your blended family, consider the following strategies:
- Start with open and honest conversations
Discuss your estate planning goals with your partner and, if appropriate, your children. These conversations may be uncomfortable but can prevent misunderstandings later. Transparency ensures everyone understands your decisions. - Consider a testamentary trust
A testamentary trust allows you to manage how your assets are distributed. For instance, you can provide financial support to your partner during their lifetime while ensuring the remaining assets go to your children after their passing. - Be specific about your wishes
Ambiguity in a Will can lead to disputes. Clearly state who will inherit what, including financial assets and sentimental items. Avoid vague language and name beneficiaries explicitly. - Regularly review and update your Will
Update your Will as your family circumstances change—whether due to marriage, the birth of children or acquiring new assets. An outdated Will may not reflect your current wishes or family structure and may cause unnecessary stress for loved ones in the future. - Address superannuation and jointly owned assets
Superannuation is not automatically covered by your Will. Instead, it is distributed based on the rules of your super fund. Complete a binding death benefit nomination to ensure your superannuation reaches the intended beneficiaries. Similarly, consider how jointly owned assets will pass to the surviving owner when planning your estate. Jointly owned assets typically pass directly to the surviving owner and are not covered by the terms of your Will, so it’s important to consider this when planning your estate.
Am I required to leave assets to a former partner?
No, you are not legally required to leave assets to a former partner. However, if your former partner is financially dependent on you or if there are unresolved financial matters (e.g., property settlements) from your relationship, they may have grounds to make a claim on your estate. It’s essential to clearly state your intentions in your Will and seek legal advice to minimise the risk of disputes.
Can a former partner or stepchild dispute my Will if I leave them out?
Yes, a former partner or stepchild may contest your Will if they can demonstrate financial dependence on you or a significant relationship that entitles them to claim adequate provision for their maintenance and support from your estate. For example:
- A former partner might dispute the Will if there are outstanding financial obligations or if they relied on your financial support.
- Stepchildren may only contest your Will if they were financially dependent on you or treated as your child during your lifetime.
In matters such as these, the Court will consider a range of factors, including the length and history of the relationship/s.
Am I required to leave assets to estranged adult children?
No, you are not legally obligated to leave assets to adult children, including those who are estranged. However, estranged children may contest your Will if they believe they have not been adequately provided for. Courts consider factors such as the reasons for estrangement, financial need and the nature of your relationship when deciding the outcome of such a claim. Including a written statement explaining your reasons for excluding or limiting their inheritance can strengthen your case if the Will is contested.
Can my stepchildren be beneficiaries of my superannuation after my death?
Yes, stepchildren can be beneficiaries of your superannuation, but only if they meet specific criteria. Superannuation is not automatically included in your Will and is distributed according to your super fund’s rules and your binding death benefit nomination. To name stepchildren as beneficiaries, you must:
- Nominate them explicitly in a binding death benefit nomination form submitted to your super fund.
- Prove they were financially dependent on you or in an interdependent relationship with you at the time of your death if you do not have a binding nomination.
It’s critical to ensure your superannuation arrangements align with your estate plan to avoid unintended outcomes.
Blended families bring immense joy and complexity. By taking the time to create a clear and fair Will, you can protect your loved ones and ensure your legacy is handled exactly as you intended.
Drafting a Will for a blended family requires careful consideration of legal, financial and emotional factors. At Waters Lawyers, we specialise in helping Cranbourne families navigate this process with clarity and confidence.
Contact us today for more information or to arrange your first consultation by visiting our website here or calling 5996 1600.
