Sometimes, the notion of “family” can be a difficult concept.  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, morphed and changed over the past 50 years.

Although many individual’s opinions seem to be unwavering on these issues, generally, when legal problems arise, the issues have nothing to do with the perceived morality of the union and almost everything to do with the actual legal relationships of the people in the family.

In Texas, the law is usually pretty straightforward and 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, the preferences you outlined in the documents will be acknowledged. But, if you don’t have an estate plan, it can be a big mess under Texas law.

Consider this typical scenario: You are on your second marriage and you have two adult children from your first marriage that somewhat get along with your spouse. 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. Where does your property end up?

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, its not always the case. 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 win the appointed. Similarly, at death in an intestacy situation, not only do you have to worry about who gets control of your estate but, perhapsmore importantly, your spouse and children are required to share your property. Even in situations where everyone gets along flawlessly, this can add great stress and strain to the relationship. Additionally, if you add any amount of disdain for one another, mistrust, or hurt feelings the family can be on the brink of demise.

But don’t be dismayed, there are a few simple solutions to these types of issues under Texas law. 

First, if you have children outside of your current marriage (meaning: kids from a prior relationship), you should strongly consider having a formal, written estate plan prepared immediately by a capable lawyer well versed in estate planning strategies. Don’t put the burden on your family to work it out themselves. In many cases, that doesn’t work out well and the cost of working it out later can rack up a large sum 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 generally because of  the desire to avoid immediate conflict or to maintain confidentiality, consider the discomfort of a family meeting lasting an hour compared to months of arguing between the living spouse and the remaining children—a conversation may be uncomfortable but it is likely a better alternative to leaving others to discuss and speculate on these issues after your death.

If you would like to learn more about creating a customized estate plan that fits your needs, give Weldy Law, PLLC a call and schedule a free initial consultation.

The above blog is for informational purposes only and is not legal advice nor does any information or communication with this website create an attorney-client relationship.