Sometimes heirs dispute an estate. There can be a lot of money at stake, and even if there isn’t, a desperate adult child can see an inheritance as a cash cow that they hope will solve their financial woes. This can lead to expensive litigation and can destroy any hope of amicable family relationships in the future.
Estate disputes normally occur after the death of the surviving parent, and are most likely to occur when a child, normally assumed to be an heir, is either disinherited or allocated less than other heirs receive.
They can also take place if a later second marriage leads to an estate left to the new spouse who isn’t the blood parent of the deceased spouse’s children. The kids feel that they have a right to their dead parent’s bounty, and they bristle over everything — or simply too much, in their view — being left to this stranger to which their parent got remarried.
For example, one case we are aware of had a lot less than $100,000 in total assets, yet the children of the deceased (formerly widowed) man sued his second wife of ten years to get all his bounty. However, he had left everything to this new wife. Whether he did this by design or default is immaterial. The children dragged this out to a two week bench trial, with two attorneys teamed up to represent the kids. In the end, though, the court’s decision was the only legal decision possible: the money went to the then-current spouse. A second marriage, says the law, is no less a marriage than the first marriage that ends in death or divorce. In fact, the court awarded fees and costs to the wife, which meant that the children not only didn’t get anything out of their lawsuit, but they had to pay all their own fees and costs, plus the fees and costs of the defendant-wife. They ended up paying out more than they would have gained if they had won.
How to Prevent Such Disputes:
With that bench trial in mind, in our opinion ALL second or later marriages should have a well-drafted Prenuptial Agreement in place, and then an estate plan drafted that is in perfect lock-step with that Prenup. Too many people see a Prenup as a hint that the spouse suggesting it is not fully committed to the marriage. In fact, a good Prenup is a protective measure to ensure that everyone is on the same page as to assets brought into the marriage, as well as those acquired after the marriage… and it is one of the best ways to prevent angry children suing the surviving spouse to get the deceased parent’s wealth for themselves. It actually will leave a lot for those children, and a reasonable provision for the new spouse as well. Fairness is key.
As for disinherited children, the answer is simple: don’t disinherit anyone if you feel there might be a risk of bad blood between the children after your passing. If you have a child with an addiction or dependency, that has been convicted of a crime, or is just a financial idiot and up to their eyeballs in debt, then plan around them.
You can favor your children who are not dispute risks during life with gifting, or by setting up a whole separate Trust funded with good assets that the kids not included know nothing about, and another Trust that seems to contain your wealth, and includes all the children equally, and that everyone knows about.
Finally, there is a clause we put into every Will and Trust that we draft: The No Contest Clause. This states that if anyone disputes, they’re automatically disinherited. Most states uphold these, but some, such as California, Georgia, Florida, and others, either do not honor them, or put qualifications on them, so check your local laws through a competent attorney to ensure you don’t leave a way for spendthrift children to attack your estate after you’re gone.
What Rights Do the Children Have in Your Estate?
Generally, none. An heir’s interest in an estate via a Will or a Living Trust is called an “expectancy,” but it is not a vested or legal right. The kids cannot dictate what you do with your assets. The assets are yours, period. The only vested right your children might have in your property is if you put some assets into an Irrevocable Trust with the children as beneficiaries.
Note that most states have some form of “Elective Share” provision, either by statute or by case law or both. This generally allows, for example, a disinherited spouse to force their receipt of a certain base dollar amount of the estate, with a percentage of the estate after that. Many state also extend a lesser Elective Share to the children as well.
In summary, careful planning, with no self-delusion about whether some of your children might dispute what you do, is called for in almost all cases.