In my practice, most clients leave their estates to their children in equal shares.  When clients tell me they intend to give a larger share of the estate to one child, or leave one child’s share in trust while the shares for the other children will be distributed outright to them, I always take the time to thoroughly investigate the reasons for that decision.  In my experience, treating children differently not only significantly increases the likelihood of a Will contest, it often causes a serious, and sometimes irreparable, breach in the relationships among the siblings after the parents have passed away.

There are valid reasons for parents to treat children differently in their estate plan, including planning for a child who has special needs, or protecting an inheritance for a child who is in the midst of a contentious divorce or bankruptcy.  However, there are also less compelling reasons that parents give for treating children differently in their estate plan.  Here are five of those reasons that just might deserve further thought.

1. You don’t like the way your child spends money. It is not unusual for parents to tell me that they don’t approve of how a child spends money.  They may express disapproval about the size of the child’s home (too big!), the type of car she drives (too expensive!), or the number of vacation trips she and her family go on (too many!).  However, if your child is not asking you or other family members for money to pay her debts, is not filing for bankruptcy, and her house is not in foreclosure, you may want to reconsider whether treating her differently than her more thrifty siblings is worth the trouble and upset it is likely to cause when you’re gone.

2. You don’t like a child’s spouse. In my experience, most parents are quite fond of their children.  However, they are often less fond of their children’s spouses.  That antipathy can cause clients to think about omitting the child as a beneficiary or leaving that child’s inheritance in trust with restrictions to the funds to reduce the possibility of  the disliked spouse benefitting from the inherited assets.  Before including such a provision in your Will or Trust, consider discussing these plans with the child in question.  If your child discloses that his marriage is troubled and may in fact be heading toward a divorce, he may be in agreement with a plan that leaves his share in trust.  If your child has a happy marriage and broaching the subject with your child makes him angry and upset, you may want to reconsider.

3. You had a falling out with a child. During the course of a long life, it is natural that your relationships with your children will have their ups and downs.  In particular, when one parent dies, the relationship between the surviving parent and children can change.   In general, be cautious about changing your Will to omit a child in response to a falling out with a child or a recent estrangement. Things could change in the future.  The legacy of an estate plan should be based on a lifetime of relationships, not the last six months.

4. Disparity in your children’s wealth. It is a rare family in which all of the adult children have the same financial circumstances.  Whether through hard work, advanced education, an advantageous marriage, or just plain good luck, some children are financially well-off.  Conversely, whether because of poor choices, a nasty divorce, medical issues, or just plain bad luck, there are children who are financially strapped.  Clients will sometimes tell me that they are thinking about omitting the well-off child because  “he doesn’t need it and the others do.”  When I hear this, I am quick to caution clients about this for several reasons.  First, how do they know the “rich” child doesn’t need the money? Would the child agree?  Second, circumstances change.  The child who is well off today may experience a reversal of fortune if his business fails, he becomes disabled, or the stock market crashes.  Third, it’s not always about the money.  I recommend that clients who are considering omitting a child whom they believe to be financially well-off consider discussing the idea with that child to gauge his reaction before going ahead with this distribution plan.

5. A child provides care to an ailing parent. Sometimes there is one child in the family who becomes the primary caregiver for an ailing parent. In those cases, the parent may want to reward that child by leaving her a greater share of the estate.  This is one of those situations where it may in fact be appropriate to handle that child’s inheritance  differently from her siblings.  This may be especially so in cases where a child has sacrificed her own career or family plans to care for the parent.  However, before deciding to favor the caregiver child over the other children, the parent should consider a family meeting to let the other children know her decision and the reason for it.  Learning about the terms of the estate plan from the parents directly means that it will not be a surprise to the children at the parents’ deaths when they are already emotionally vulnerable.

One of the reasons for creating an estate plan is to make it as smooth and easy as possible for your family to carry out your wishes at your death.  Leaving assets unequally among children often throws a monkey wrench into to situation.  If you are intent on leaving more, or less, to one of your children, or making the manner in which a child receives his inheritance different from his siblings, consider opening the lines of communication sooner rather than later and discussing the plan with your child or children during your lifetime.  Doing so can greatly reduce the likelihood of a Will contest, or an irreparable breach in your children’s relationship following the parents’ deaths.  If this is a topic you do not want to talk about with your children, leave a letter for them explaining your reasons for the disparate treatment.  Such a personal missive can go a long way toward healing hurt feelings and reducing the anger and confusion that often arise in these situations.

February 2015

Attorney Suzanne R. Sayward is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts.  She is a partner with the Dedham firm of Samuel, Sayward & Baler LLC.  This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.