Our society has changed considerably in the past few years. More and more people are marrying either after the death, or divorce, from their spouse. Many times this event takes place in a manner where the new couple decides to have children of their own. In other situations, the marriage takes place later in the lives of the couple, but dealing with children “brought into the marriage” is often a tricky maneuver, and requires forethought. Ditto, with regard to how to equitably balance the needs of “new” children with those who pre-existed when the marriage took place.
In my mind, dealing with the issue of children when the marriage takes place after a time when the new couple would consider have children of their own is relatively simple. The newly married couple should consult counsel before getting married, and agree upon an “ante-nuptial” agreement which sets forth exactly what would happen regarding assets brought into the marriage upon divorce or death. Usually, it is possible to develop a solution that works for both parties, keeping in mind that most people in this situation want to make sure that their own children are adequately provided for. The key to this type of transaction is full disclosure by both parties and making sure each party has independent counsel representing him and her.
In the situation where one (or both) parties have pre-existing children and then have new children with their new spouse, there are other considerations. Among matters which need to be ascertained are the following:
1. Has the prior spouse (in a divorce situation) made provision for his or her child or children? This can be important in making a fair allocation between the new children and the child or children who existed prior to the marriage.
2. What are the ages of the pre-existing children and the new children? Education expenses still are a major factor for families. If the pre-existing children are through with college, or almost through, they will not have the needs that younger children will have.
In the new children situation, my advice is generally to try to develop 5, 10 and 15 year scenarios for the children involved. Once a couple has a better idea of these needs, they can plan accordingly. In one situation where I am involved, there is a 19 year old child in her second year of college, and two younger children in grade school. The parent of the 19 year old has purchased a term life insurance policy for his daughter and had an insurance trust be the owner. If he should die before she finishes school, there is enough in the trust to pay for her tuition. He has the option of continuing the policy after she finishes. In his will he has not made separate provision for the 19 year old. He has left everything to his new wife, with a trust to be the beneficiary of a trust for the little children if the wife does not survive him. While this may not be a perfect solution, it demonstrates how with a little planning, basic situations like this can be sensibly addressed.