Step by Step

Posted on Sep 24, 2024 by

As a kid, I loved ‘The Brady Bunch.’ I was fascinated by the family’s huge house, which was, of course, designed by Mike (he even had his own home office 50 years before COVID). I enjoyed how the show portrayed the trials and tribulations of growing families and that, with honesty and communication, everything would work out in the end.

When I started practicing estate planning, however, I learned that not all blended families were like the Brady Bunch.

September 16 was National Stepfamily Day. The holiday was founded by stepparent Christy Tusing-Borgeld in 1997, to celebrate blended families. Today, over 30% of American children under the age of 18 live in a stepfamily environment.

As a nervous lawyer, I think everyone should have their estate plans in order. This is especially true, though, for blended families.

Many people don’t realize the implications of not planning. I’ve met with many couples married for the second time and the spouses have kept all of their assets separate. Wisconsin’s marital property law, however, states that without a prenuptial agreement, all assets that are acquired during the marriage are deemed to be marital, meaning both spouses own them equally – regardless of how they are titled. In addition, if marital assets are commingled with individual assets and it is difficult to ascertain what is marital and what is individual, the law errs on the side of the marriage and classifies it all as marital.

For example, if I owned a house and later got married, the home would be my individual property. However, every paycheck I receive after getting married is marital. Therefore, if the house had a mortgage against it and I used my paycheck to make payments, I would be commingling marital assets with my individual home. After a while, it would be extremely tricky to distinguish what was marital and what was individual. So, even though the house is titled solely in my name, it’s likely the whole home would be considered marital.

While prenups are icky to talk about, they serve a valuable purpose, and not just in the event of a divorce – they can be extremely helpful at death, too. In my example, if I prepared a will saying I want my home to go to my children when I die, without a prenup, that may not happen. Upon my death, my wife could file a marital election, which allows her to claim half of my marital property. If so, only half of my house would go to my kids, forcing them or her to buy one another out. While my will indicates where I want my assets to go when I die, without a prenup, I may not own what I think I do.

If I die intestate, or without a will, Wisconsin law dictates where my assets go. My interest in any marital property would go to my children, while my spouse would retain her half. My individual property would be divided in two, with half going to my children and half going to my spouse. Again, this can cause a tremendous amount of stress and frustration at an already difficult time if family members didn’t receive what they expected.

The loss of a parent can stress the strongest family relationships, but when two families are involved, it can be even harder. Not having an adequate plan can be more disastrous than playing ball in the house.



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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.
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