Estate Planning 2026: Protect Your Kids

Short answer: An “everything to my spouse” will does not protect your children if you are in a blended family or remarry later in life. Once your spouse inherits assets outright, those assets are legally theirs to leave to whoever they choose, including a new spouse or their own children, and nothing obligates them to pass a dollar to yours. A properly drafted QTIP trust, a marital trust authorized under IRC section 2056(b)(7), lets your spouse use the assets for life while guaranteeing what remains goes to your children when your spouse dies.

What actually goes wrong with a simple “everything to my spouse” will?

The will works exactly as written. Your spouse inherits everything you own, free and clear. The problem is what happens next, and it has nothing to do with whether your spouse loved you or meant what they said. Once an asset passes to your spouse outright, it becomes their property under their own name, subject to their own estate plan, their own creditors, and their own decisions. If your spouse remarries, gets sick, or is persuaded by their own children to “keep things simple,” a later will or trust can redirect everything away from your children without violating any promise, because no legal promise was ever made. A verbal understanding between spouses is not enforceable against the person who ends up holding the money.

How does a QTIP trust fix this?

A Qualified Terminable Interest Property trust, usually called a QTIP trust, separates use from ownership. Your assets fund the trust at your death instead of passing directly to your spouse. Your spouse receives the income the trust generates for the rest of their life, and the trust can also give them the right to live in a home the trust holds. What your spouse cannot do is redirect where the principal goes after they die. The trust document already answers that question, and it names your children. Your spouse does not have to remember a promise or resist pressure from a new spouse or stepchildren, because the decision was never theirs to make in the first place.

Does my spouse owe tax on assets in a QTIP trust?

The unlimited marital deduction lets you transfer assets to your spouse without triggering federal gift or estate tax at your death, and a QTIP trust is built specifically to take advantage of that deduction while still controlling where the principal ends up. Citation: IRC section 2056(a) for the marital deduction, IRC section 2056(b)(7) for the QTIP trust itself. This is a separate question from whether your children eventually receive the assets. The tax treatment and the inheritance outcome are handled by different parts of the same document.

Does putting everything in a revocable living trust solve this instead?

Not by itself. A revocable living trust is a probate avoidance tool. It does not, on its own, decide who ultimately keeps your assets after your spouse dies. If your living trust distributes everything to your spouse outright when you die, the same problem exists as with an “everything to my spouse” will: your spouse now owns the assets and can leave them to anyone. The fix is not the type of document, it is how the document distributes what you leave behind. A trust that holds assets for your spouse’s benefit and then names your children as the remainder beneficiaries, whether structured as a QTIP trust or a similar arrangement, is what actually protects your children. If you would like to know whether your existing living trust already has this protection built in, that is worth a direct conversation rather than a guess.

What if I never get around to writing a will at all?

Dying without a will does not solve this problem either, and it does not automatically protect your children. California’s intestate succession statutes decide who inherits, not your personal wishes. Prob. Code § 6400. For community and quasi-community property, your surviving spouse takes all of it, their own half plus yours. Prob. Code § 6401(a)-(b). For separate property in a blended family, your spouse’s share depends on how many children survive you: all of it if you have no children, half if you have one child, and one third if you have two or more children, with the remainder passing directly to your children. Prob. Code § 6401(c). That means intestacy actually routes some separate property straight to your children rather than through your spouse, but it comes with its own costs: the split is whatever the statute dictates rather than what you would choose, and a minor child inherits their share outright with no trustee managing it for them.

Figures verified July 2026.

What to do next

If you are remarrying, already remarried, or blending a family with children from a prior relationship, do not assume a will or trust that leaves everything to your spouse will take care of your kids. Talk with an estate planning attorney about whether a QTIP trust or a similar structure fits your situation, and have your existing documents reviewed if it has been years since anyone looked at them.