Blended Families and Estate Planning: What You Need to Know

The single most common — and most damaging — estate planning mistake made by people in blended families is assuming that a simple Will leaving everything to a current spouse will ultimately benefit their children. In practice, it often does the opposite. When you leave your estate outright to your surviving spouse, they become the absolute owner of everything you owned. They are then entirely free to deal with that wealth however they choose: spending it, gifting it during their lifetime, or leaving it in their own Will to whomever they wish. There is no legal obligation on them to pass any of it to your children.

Consider a straightforward example. David dies and leaves his entire estate — the family home, savings, and investments — to his second wife, Sarah. David has two adult children from his first marriage; Sarah has three children of her own. Sarah inherits everything outright. Several years later, Sarah prepares her own Will and, understandably, leaves her entire estate to her own children. When Sarah dies, David's children from his first marriage receive nothing. Not because anyone acted dishonestly — but because David's simple Will made this outcome legally inevitable the moment he signed it.

This scenario plays out constantly across Victoria. The problem is not that people intend to disinherit their children. They simply do not appreciate that giving an absolute interest to a surviving spouse means surrendering all control over the ultimate destination of their wealth. In a first-marriage family, where all children are shared, this risk does not arise. In a blended family, it is a central and serious concern that requires specific and deliberate planning.

Many couples in blended families believe they have already solved this problem. "We've made mirror Wills," they say. "We both leave everything to each other, and then to all the children equally." This arrangement is extremely common — and it frequently fails to deliver the result people expect.

Mirror Wills are simply two Wills that reflect each other in structure. Each spouse leaves their estate to the other, with an alternative distribution if the other spouse has already died. Mirror Wills are, in legal terms, revocable. That is the critical point. Each spouse can revoke their Will at any time, without telling the other. After the first spouse dies — having relied on the arrangement — the survivor is entirely free to make a new Will that cuts out the first spouse's children altogether. Victoria's courts have repeatedly confirmed that a mirror Will arrangement, standing alone, creates no binding obligation on the survivor. The survivor is not held to it.

The only arrangement that can legally bind a surviving spouse to a particular course of distribution is a mutual Will — a specific form of agreement in which both parties promise, by contract, not to revoke their Wills without the other's consent. Mutual Wills are rare, require specific drafting, and involve complex legal requirements. The mere fact that two Wills are structurally identical does not make them mutual Wills. Most solicitors who draft "mirror Wills" are not creating mutual Wills, and clients are rarely informed of the distinction.

The consequence is that couples who believe their blended-family estate planning is settled — because they have "matching Wills" — may have no protection at all. The mirror Will arrangement provides comfort but not legal certainty. If you are relying on a mirror Will to protect your children's inheritance, it is essential to understand exactly what legal effect that document does and does not have. Andrew O'Bryan can review your existing arrangements and advise you candidly on whether they achieve what you intend.

For most Australians, superannuation is one of the largest assets they own. Yet it sits entirely outside the Will. Superannuation does not automatically form part of your estate unless the trustee of your fund pays it to your estate — and whether that happens depends on the type of nomination you have in place, and whether it is current and valid.

In blended families, outdated superannuation nominations are a significant and recurring source of unintended outcomes and family conflict. If you divorced ten years ago, remarried, and have never updated your superannuation beneficiary nomination, your ex-spouse or children from your first marriage may still be named. Conversely, if you have an old binding nomination in favour of your current spouse and you intended to provide for your children from your first marriage, your super may bypass those children entirely. In some funds, where no valid binding nomination exists, the trustee has a discretion to determine who receives your super death benefit — and their decision may not reflect your wishes at all.

Blended families require a superannuation strategy, not just a Will. The two instruments need to work together. Andrew O'Bryan will always raise superannuation as part of any estate planning engagement involving a blended family, and will refer you to a financial adviser where specific superannuation advice is needed. Ignoring the super question while carefully drafting a Will is like locking the front door while leaving the back door open.

A testamentary trust is a trust created within your Will that comes into effect on your death. Unlike a simple outright bequest — where you give assets directly to a beneficiary who then owns them absolutely — a testamentary trust places assets under the control of a trustee, who manages and distributes them in accordance with the terms of the trust. For blended families, testamentary trusts offer a powerful solution to the "second spouse" problem.

A common structure for a blended family is to give the surviving spouse a life interest in the estate — meaning the spouse receives the income generated by the estate assets for the rest of their life, and may be entitled to occupy the family home, but does not own the underlying capital. The capital is preserved within the trust and, on the surviving spouse's death, passes to your children. This structure achieves two important objectives simultaneously: it provides adequately for your surviving spouse during their lifetime, and it ensures that your children ultimately receive the inheritance you intended for them.

The trustee of a testamentary trust plays a crucial role. They control how income is distributed, whether capital can be advanced, and how the trust assets are invested. The appointment of a trustee — whether it is a trusted individual, a professional, or a combination — needs careful thought. In a blended family context, where the interests of the surviving spouse and the children from the first marriage may not always align, the identity and role of the trustee can be a source of tension if not addressed carefully in the Will. Andrew O'Bryan has extensive experience structuring testamentary trusts for blended families, and will ensure the trust deed within your Will is drafted to minimise ambiguity and potential for dispute.

A life interest in the family home is one of the most practical tools available in blended family estate planning. The concept is straightforward: you give your surviving spouse the right to reside in the family home for the remainder of their life, while the property itself is held by your estate (or a testamentary trust) and passes to your children when the life interest ends on the spouse's death. The spouse does not own the house — they have a right to live in it. The children own the eventual remainder interest.

Properly structured, this arrangement can provide real security for your surviving spouse while guaranteeing that the property ultimately passes to your children. However, there are important practical considerations that must be addressed in the drafting. Who is responsible for rates, insurance and maintenance during the life tenancy? Can the spouse require the property to be sold and the net proceeds invested for their benefit — a right known as a "right to require conversion" — if their circumstances change, such as if they need to move into aged care? What happens if the surviving spouse wishes to move to a smaller property? A well-drafted life interest provision will anticipate these scenarios and provide clear answers, rather than leaving them to be resolved by dispute or litigation.

Conditions in Wills — such as a requirement that a bequest to a spouse is subject to the condition that certain property passes to children on the spouse's death — can also be used, though they are more complex to enforce than a properly structured testamentary trust. In some cases, a combination of instruments works best: a testamentary trust for the main assets, combined with a specific life interest in the family home. Andrew O'Bryan will assess the composition of your estate, your family circumstances, and your objectives to recommend the most effective structure for your situation.

Even the most carefully considered Will can be the subject of a family provision claim. Under Part IV of the Administration and Probate Act 1958 (Vic), a range of eligible persons — including spouses, domestic partners, and children — can apply to the Supreme Court for further provision from a deceased estate if the Will (or the intestacy) fails to make "adequate provision" for their proper maintenance and support. In blended families, this creates a real tension: adequately providing for your current spouse may come at the expense of your children, and vice versa.

If you attempt to exclude your current spouse or children from your Will entirely, or provide them with only a nominal benefit, they may have grounds for a family provision claim regardless of your reasons. A Will is not a legally impenetrable shield against the obligations the law imposes. The existence of an explanatory letter, or even a detailed written explanation of your reasons, does not automatically prevent a claim from succeeding — though it may influence the Court's discretion. The only reliable defence against a family provision claim is to make genuinely adequate provision in the first place.

This does not mean you are powerless to exercise meaningful testamentary choice in a blended family. It means that the planning needs to be done with a clear understanding of the legal landscape. A Will that provides for your surviving spouse through a life interest — rather than excluding them — is far less vulnerable to a successful claim than one that ignores them altogether. Similarly, ensuring that your children from a previous relationship receive a meaningful share of the estate, either outright or through a testamentary trust, reduces the prospect of a contested claim. Andrew O'Bryan's approach to blended family estate planning always includes a frank assessment of the family provision risk in the structure proposed.

The single most important step you can take is to review your existing Will — or, if you do not have one, to make one now — with the specific risks of a blended family firmly in mind. A Will drafted before you entered your current relationship almost certainly does not address your current circumstances adequately. The same applies to any Will that takes a simple "leave everything to my spouse" approach without providing for your children from a previous relationship.

At the same time, review your superannuation beneficiary nominations. Contact your superannuation fund and ask who is currently nominated as your beneficiary. If the nomination is outdated, out of step with your current wishes, or simply does not exist, address it. Consider whether a binding death benefit nomination — which overrides the trustee's discretion — is appropriate for your fund. This is a separate step from preparing your Will and requires attention in its own right.

Ideally, you and your partner should both review your estate plans together — not to have identical Wills, but to understand each other's intentions and ensure the overall family outcome reflects what you both want. Andrew O'Bryan's advice in these matters is frank and practical. He is experienced in advising people in blended families where the interests of a spouse and children from a previous relationship need to be carefully balanced. His approach is to provide each client with independent advice — you should both understand your own legal position, not simply sign documents you have not fully considered. If you and your partner wish to plan together, Andrew can facilitate that process while ensuring each of you is properly advised.

The risks in blended family estate planning are real, well-documented, and entirely avoidable with the right advice. The cost of getting it right is modest; the cost of getting it wrong can be measured in family relationships, legal disputes, and inheritances that disappear entirely.