How to Resolve Disputes Between a Surviving Spouse and Children of Another Marriage

How to Resolve Disputes Between a Surviving Spouse and Children of Another Marriage

Inadequate estate planning and conflicting documents can lead to disagreements between a surviving spouse and children from another marriage, especially when large sums of money are at stake. These disputes are usually settled through mediation or through litigation in probate court. If you’re considering a second marriage, you can update your estate plans to avoid disputes between your surviving spouse and children from a previous marriage.

Method 1 Using Mediation

1. Speak with the other party. Because mediation is a voluntary process, the other party must be willing to try mediation to resolve the dispute. In order to persuade them, emphasise the advantages of mediation over litigation.

Mediation is a collaborative process that assists both parties in reaching a mutually acceptable resolution to their dispute.

You have a lot of leeway in coming up with a creative solution, including reaching a compromise that would not be possible if the matter were resolved by a judge in traditional litigation.

Another advantage of mediation is that all conversations and negotiations between the parties are kept private. A probate dispute in court, on the other hand, is public record.

If you are concerned about sensitive family details being revealed in public court, confidentiality may be preferable.

Mediation is also concerned with preserving family relationships. In some cases, the surviving spouse’s relationship with the children from a previous marriage may not be worth preserving.

Even if there is no love lost between the two parties, a contentious, drawn-out public probate dispute will affect other members of the family.

2. Select a mediation service. Most areas have a variety of mediation services from which to choose, so contact the clerk of the probate court to learn which services are court-approved and recommended for resolving probate disputes.

Typically, the clerk will have a list of specific mediators or mediation services from which you can choose.

Pay special attention to the mediation providers on this list because they are more likely to specialise in probate disputes. Different mediation services in your area may specialise in different areas of the law, but you need a mediator who is familiar with probate issues.

You may be assigned a mediator, choose one on your own, or send a notice to the other party with two or three options, depending on the procedures of the probate court where the deceased person’s will has been filed.

Once you’ve decided on a mediator, you’ll need to call and schedule an appointment. The mediation session is informal, and you do not need an attorney, but you may want to hire one if you feel more comfortable doing so, or if you know the other party has already hired one.

3. Make an opening statement. When you arrive at the mediation appointment, the mediator will make an introductory statement and go over the mediation process in general. Following that, each party will be given the opportunity to present their side of the storey.

Unlike in a civil court proceeding, your opening statement in mediation does not need to be formal and should not be adversarial.

Simply explain your point of view and how you intend to settle the dispute. Maintain civility in your statement and avoid emotional outbursts or personally insulting the other party.

It can be beneficial to concentrate on “feel” statements – rather than accusing the other party of having specific motives or intending to hurt you, tell the mediator and the other party how the other party’s actions make you feel.

For example, if you are the child of a previous marriage and your father’s will is being probated, you could claim that your father promised you his classic automobile and that his surviving spouse’s desire to sell the car makes you feel as if she is attempting to defraud you of a family heirloom of intense personal significance and value.

4. Try having a joint discussion. Typically, the mediator will work with the parties to identify specific details on which you both agree to find common ground in order to spark a productive discussion to resolve the dispute.

Even if you want to interrupt or argue with the other party, try to keep the conversation civil and rational as much as possible.

Instead of focusing on the points of contention, look for statements on which you can all agree – even if it’s just acknowledging that all parties loved the deceased person and want to honour their wishes.

5. Separate into different rooms. After isolating the issues at the heart of the dispute, the mediator will direct each party to caucus separately. The mediator moves back and forth between you, attempting to reach an agreement.

Expect the mediator to pay you several visits. He or she will move back and forth between your room and the other party’s room, attempting to identify the source of the disagreement so that it can be resolved amicably.

Separating the parties makes the situation less confrontational and allows you to focus on the facts rather than being distracted by your anger at the other party.

The mediator will outline each party’s concerns and address them one at a time. Once one issue has been resolved, the mediator will move on to the next.

You may bring any relevant evidence to the dispute, such as a letter the deceased person sent to you promising a specific piece of property or describing their estate plans.

You may also want to bring witnesses – or witness statements – regarding the issues at the heart of the dispute. Because mediation does not adhere to the same strict rules of evidence as courts, written statements from third parties are perfectly acceptable.

6. Final negotiations should take place. When the mediator believes you are close to reaching an agreement and resolving the dispute, they will call everyone back to the same table to work out the details.

Assuming you are able to resolve many of the key issues, the mediator will determine when you are in a position to complete the agreement face to face.

The mediator’s focus will be on facilitating a compromise that satisfies both parties while also leaving you both feeling relatively good about each other, putting any resentment or anger behind you.

7. Any agreement should be in writing. If you are able to settle your probate dispute through mediation, the details of that resolution must be written down and signed by all parties in order for it to be legally binding.

Typically, the mediator will outline the terms that you’ve all discussed and go over them to ensure that they’re acceptable before writing up a contract.

When all parties sign the contract, it becomes legally binding and enforceable in any court of law.

You may be required to file the mediation settlement agreement with the probate court, depending on the nature of the dispute. This is especially true if a lawsuit related to the dispute has already been filed.

Method 2 Litigating the Dispute

1. Speak with a probate litigation attorney. Unfortunately, some disagreements between a surviving spouse and children from a previous marriage cannot be settled through mediation. If you’re thinking about involving the probate court, you’ll need the help of an experienced probate litigation attorney.

Probate litigation can be complicated, and your judgement may be clouded by the emotional fallout from a loved one’s death and the subsequent dispute with family members.

An experienced probate litigation attorney can not only provide you with support, but can also advise you on the best options for resolving the dispute.

Furthermore, even if you are familiar with the civil court system, there are a number of rules that only apply in probate proceedings.

As a result, you should interview several attorneys and ensure that the one you choose has experience handling disputes like yours through litigation.

2. Prepare your complaint. Typically, probate dispute litigation begins with one of the disputing parties filing a complaint or objection to challenge or contest the will that has been filed, or the person who has been appointed executor or personal representative of the estate.

Probate disputes typically revolve around a disagreement over who should be in charge of the estate, disagreements over which property should go to which beneficiary, or concerns that the will is invalid or that another will governs.

The allegations that comprise the bulk of your complaint will differ depending on the nature of the dispute as well as the state’s probate laws.

Remember that when a will is probated, the controlling law is the law of the state in which the deceased person resided – not the law of your state if you live elsewhere, even if you are one of the main beneficiaries.

3. Submit your complaint. Once your complaint is complete, you must present it to the clerk of the probate court where the will is being probated in order to begin the dispute’s litigation. Your original complaint, as well as all copies, will be file-stamped by the clerk.

You must bring a copy of your original complaint and any accompanying documents or required forms, as well as a copy for your own records and a copy for each person you need to serve. In general, you’ll need at least one copy for the estate and another for other major beneficiaries, most notably the person or people with whom you’re arguing.

In other words, if you are the surviving spouse and your dispute is with your deceased husband’s three children from a previous marriage, you must bring your originals as well as five copies to be file-stamped – four if you are serving as executor or personal representative of the estate.

To file your complaint with the court, you must pay a filing fee, which is usually around $100. If you’ve hired an attorney, they may pay this fee and then charge it to you as court costs.

If you are unable to pay the fee, request a fee waiver application from the clerk. If your income and assets are below the court’s threshold, you will not be required to pay court costs.

4. Serve the estate and other beneficiaries. A copy of your complaint must be delivered to the estate’s executor or personal representative, as well as the beneficiary with whom you are disputing and any other major beneficiaries named in the will.

Traditionally, service is completed by hiring a sheriff’s deputy to hand-deliver court documents to those who must be notified.

Following that, a proof of service document is filed with the court, certifying that the person received adequate legal notice of the lawsuit.

You may also have the option of serving the court documents by mail, which means sending them to the person via certified mail with a return receipt requested.

You can complete and file the proof of service document with the court once you receive the green card indicating that the person has signed for the documents.

5. Any response should be evaluated. Anyone who receives your complaint has the right to file a written response, and you should expect challenges to your complaint as well as potential motions to dismiss.

Any written responses filed in court will be served on you in the same manner that you served the other parties.

The response will differ depending on the party’s role. For example, the executor or personal representative of the estate may be required by court rules to respond to the lawsuit.

Other parties who are only tangentially involved in the dispute as other beneficiaries of the estate, on the other hand, may not be required to respond or even participate in the lawsuit if they believe their interests would be better served by staying out of it.

If a party files a motion to dismiss in response to your complaint, you will typically be required to attend a court hearing on this matter before your case can proceed.

You will have to argue that your case should be allowed to proceed at a hearing on a motion to dismiss. The party who filed the motion bears the burden of demonstrating that you haven’t raised any factual issues and that your case should be dismissed as a matter of law.

6. Investigate the situation. After all pleadings have been filed, the parties will engage in the discovery process and exchange information with each other that is relevant to the claims you made in your complaint, just like in any civil lawsuit.

Discovery typically consists of written questions, requests for production, and depositions, which are oath-taking interviews with a party or witness.

The nature of the discovery will be determined by the issues raised in your complaint. For example, if you are contesting the will’s validity, you may need to speak with more witnesses about the context in which the will was drafted and executed by the deceased person.

There are some special discovery tools available to probate litigants, which are specifically designed to accommodate the fact that a key party in the dispute has died and cannot answer for themselves.

Medical records and information about the deceased, for example, must generally be made available to a probate litigation party.

The court may hold a conference and set a deadline for the completion of the discovery process. This expedites the litigation so that a trial can be scheduled as soon as possible.

7. Participate in the probate trial. Finally, the probate court will hold a hearing during which all parties will present their arguments and the judge will rule on the claims you made in your complaint.

A probate dispute trial is conducted in the same manner as any other civil trial before a judge. Each party will be able to make an opening statement before taking turns telling their respective sides of the storey.

You, as well as the other parties, will be able to present evidence and call witnesses in support of your claims.

Following the presentation of all evidence, the judge will make a decision on how the dispute should be resolved.

The judge may issue an order from the bench, followed by a written order, or may take the matter under advisement and issue a written order a few days later.

Method 3 Preventing Disputes

1. Make use of a prenuptial agreement. A valid prenuptial or post-nuptial agreement can help establish the assets you’ve already accumulated to which your second spouse is entitled if you anticipate a probate dispute between your second spouse and children from a previous marriage.

Keep in mind that second marriages are frequently a source of probate litigation. Many people believe that a prenuptial agreement is something that is made in anticipation of a divorce, but this is not the case when it comes to estate planning.

A prenuptial agreement allows you to clearly state your new spouse’s entitlements in relation to other beneficiaries so that everything is clear before the marriage is finalised, avoiding later confusion.

If you’ve already married, a post-nuptial agreement can resolve property issues that both spouses brought into the marriage.

Keep in mind, however, that depending on your state’s marital property laws, a post-nuptial agreement may not be valid in terms of dividing property acquired during the marriage.

2. Avoid co-ownership. Real estate and titled personal property owned jointly with children from a previous marriage can give rise to probate disputes between those children and a surviving spouse who had full use of the property.

Joint ownership is often thought to be an easy way to pass on property to someone else, but in reality, it exposes the other person to your liability for the asset and can limit their ability to make a different decision later on regarding the inheritance of that property.

Joint ownership can also cause complications if the owners of the property listed on the deed or title conflict with the named beneficiary of that property in your will.

For example, if you and your second spouse live in a home that you jointly own with your son from a previous marriage, your spouse may reasonably assume that she will own the home, or at the very least be allowed to continue living there, after your death.

However, if your son inherits the property as the sole owner listed on the deed and decides to sell it, your surviving spouse and your son may have significant disagreements and bitter animosity.

3. Update your estate planning documents on a regular basis. Wills and trusts should be reviewed and amended as needed to account for major life changes such as divorce or remarriage, and any old documents should be destroyed.

Experts in estate planning often recommend reviewing your estate planning documents at least once a year.

Furthermore, you should always update your estate plans following a major life event involving you or a significant beneficiary, such as marriage, divorce, or the birth of a child.

While a codicil can be used to amend a will, it is usually easier – and potentially less confusing for your beneficiaries – to simply create a new document and destroy the old one.

Keep in mind that you must follow the same procedures when creating a new will or a codicil as you did when creating the original one, or the new document will not be legally valid.

4. Make a memorandum of personal property. Addressing personal property separately from your will or trust instrument can help to avoid disputes because the separate document can be updated quickly and easily without having to go through the formalities of executing a will or trust.

Most, but not all, states accept these documents in probate court. If you have any questions, consult with an estate-planning attorney to see if a personal property memorandum is appropriate for your estate.

The personal property memorandum allows you to quickly and easily record any promises you made to friends or family members without going through the time-consuming process of executing a new will.

For example, if you’re talking to your daughter from a previous marriage and promise her your collection of antique dolls, all you have to do is make a note in your personal property memorandum that this promise was made.

5. Hold a family gathering. Gather all beneficiaries and go over your estate plans to ensure that everyone understands your wishes and how you intend to distribute your real and personal property after your death.

Making sure everyone is on the same page about how you intend to distribute your assets is one of the simplest ways to avoid disputes between a surviving spouse and your children from another marriage.

Even if one or more parties are unhappy with your decisions, they will usually agree if they understand that it was what you wanted.

Probate disputes frequently involve people who were very close to you in life and have differing views on how your will or estate-planning documents should be interpreted.

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