Choosing Alternates for Your Spouse or Partner When You Have Kids

If you want your spouse or registered domestic partner to receive all or most of your property, Nolo's Online Will then asks you to name an alternate for your spouse or partner.

The will you create with Nolo's Online Will provides that all beneficiaries—including your spouse—must survive you by 45 days to receive the property you leave them. This is a standard will provision, called a survivorship requirement. It is based on the assumption that if a beneficiary survives you by only a few days or weeks, you would prefer the property to go to another beneficiary that you choose and name in your will.

The alternate or alternates you choose will receive the property only if your spouse or domestic partner dies less than 45 days after you do.

Depending two options for alternates. You can name:

  • your child or children, or
  • other alternate beneficiaries.

These two approaches to naming alternates are shortcuts. You won’t specify which items go to which beneficiaries because these alternates will receive all of the property that would have gone to your spouse or partner.

Naming Your Children as Alternates

It is common for married or partnered people who have children to simply leave all or most of their property to the surviving spouse or partner and name the children to take the property as alternates. This means if your spouse or partner does not survive you by 45 days, the property your spouse or partner would have received will pass to your child or children.

If you have more than one child, you must decide how the children should share the property.

EXAMPLE: Meg and Charlie have three grown children. When Charlie makes his will, he leaves everything to Meg and names the children as alternates for her. He directs that all three children should receive equal shares of his property if Meg doesn’t survive him and they take it, instead.

If any of your children are minors or young adults, you may:

  • specify the share each child will receive; later, you may designate how each child’s share will be managed and doled out if a child is under 35 when you die, or
  • direct that the property be held in one undivided fund, called a pot trust; under this option, the person you select to serve as trustee will use the assets in the trust for all your children as needed, until your youngest child turns an age you choose—up to age 25.

(See Management for Property that Passes Under Your Will for a discussion of these methods for managing property left to children.)

EXAMPLE 1: Julia and Emanuel have three young children. When Julia makes her will, she names Emanuel to inherit most of her property and leaves a few small items to her sister. As alternates for her husband, she picks her children. But because they are too young to manage money or property, later in the program she names her sister to manage any property the children may take under her will while they are still young.

EXAMPLE 2: Barry and his wife, Marta, have two young daughters close in age. In his will, Barry leaves Marta all his property and chooses the children as alternate beneficiaries. He also picks the pot trust option and names his mother as trustee. If Marta does not survive him by at least 45 days, all of Barry’s property will go into a trust for the two girls, administered by Barry’s mother.

Nolo's Online Will also lets you name a second level of alternates—that is, alternates who will take the property a child would have received, if that child does not survive you. You can name an alternate for each child or, if you have two or more children, you can designate that the surviving children receive any property that would have gone to the deceased child.

Naming Alternates Who Are Not Your Children

If you decide to specify alternates to receive the property left to your spouse or domestic partner, you may name whomever you want. You are not constrained, as with the first option, to naming only your children as alternates. For instance, you may name a friend or just one of your children. If your spouse or partner does not survive you by 45 days, the alternates you name will receive the property your spouse or partner would have received. If you name more than one person, you may specify what share each is to receive.

EXAMPLE: Celeste is married with two grown children. The children have both been provided for nicely with money from trusts and are financially secure. In her will, Celeste leaves her husband most of her property, with a few exceptions of some heirlooms for her children. As an alternate for her husband, she names the university where she taught for many years.

Keep in mind that if you name more than one alternate, you cannot give specific directions about who gets what specific items. However, you can specify the share of your property that each alternate beneficiary is to receive.

You can also name a second level of alternates—that is, alternates to take the property should both your spouse or partner and a first level of alternates you name all die before you do. You can name a backup alternate for each alternate. If you named more than one first-level alternate, you may also designate that the survivors receive any property that would have gone to a deceased alternate.

If You Do Not Name Alternates

It is usually a good idea to name at least one alternate beneficiary. But not everyone chooses to do so. You may decide not to name an alternate, for example, if you are not concerned that your spouse or domestic partner might die before or soon after you. Or you may simply not know a person suitable to act as an alternate taker.

If you leave your entire estate to yoru spouse or partner, you do not name alternate beneficiaries, and your spouse or partner does not survive youbeneficiaries do not survive you, then your estate will be distributed according to the laws of your state (and will likely go to your children). Learn more about the laws of Intestate Succession.

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