Margie Reynolds and Tim Anderson married on June 16^th, 1999. Margie had three sons, Kevin and Rick, from her previous marriage. Tim had one child, Robert, from his previous marriage. Kevin and Rick live with Margie and Tim, while Robert lives with his mother in Dallas. Unlike their previous partners, Margie and Tim worked very well together and their marriage seemed to thrive.

Tim was laid off in the fall of 2001 and could not find a job. In 2002, Tim’s father passed away leaving Tim two million dollars. Tim invested most in the stock market for his retirement. Since Tim was not able to find work in his field, Tim opened up a restaurant. Within four years, Tim had opened three locations all serving the Houston area.

Tragically, Tim was in a car accident and passed away on December 13^th, 2007. Margie and Tim had never been informed of the toxic probate problem of dying intestate (dying without a will) with a blended family. In this situation, Texas Probate Code § 38 (B)(2)(b) dramatically affects who will inherit Tim’s property. It states, “if any of the deceased spouse’s surviving descendants are not also descendants of the surviving spouse, then the community property is divided… the descendants of the deceased spouse inherit the deceased spouse’s one-half of the community property…” (separate property is treated differently than community property under different sections of the probate code).

Robert’s mother brought a lawsuit to protect Robert’s inheritance rights. At the end of trial, Robert inherited two-thirds of Tim’s inheritance invested in the stock market. The judge awarded more than 50% of the business to Robert. In addition, Robert received half an interest in the Margie and Tim’s homestead.

Although this story is fiction, it reflects exactly what happens to thousands of blended families each year. Blended families create a toxic probate problem. Underlying the problem is the question: did Tim want his property to go to his spouse or to his child? Unless we have a will, we don’t know. So, the Texas State Legislature decided that they would protect the children if no will has been left to designate an alternative beneficiary.

If you think this law is unfair or should be changed, think of the alterative. Let’s say the Texas State Legislature changes Texas Probate Code § 38(B)(2)(b) to give the property to the spouse instead of the children. In that situation, Margie would inherit all of the property and Robert would get nothing. Since Robert is young and really has no influence to encourage his father to get a will to protect his interest, the Texas State Legislature has decided to put that burden on the spouse. The spouse should be aware of this issue and take the necessary steps to protect their interests.

You might still feel that Margie should have received the property. In all honesty, Margie should have received the majority of the property. But, let’s change the situation, what if Margie passed away. The law has been changed to give the property to the spouse. Well, in that situation, Kevin and Rick would inherit nothing. Tim would take all the property. What if Tim doesn’t want to continue raising Kevin and Rick? In order to avoid this problem, the property is given to the children to protect their interest.

If you are a part of a blended family or your spouse has a child with another partner, then you need to get your will done. Since this information is extremely important please pass this article along to a friend or family member who is part of a blended family or whose spouse has a child with another partner.