Could simple estate planning have prevented war as we know it? Yes, I sometimes think weird things while sitting in Temple for the Jewish High Holy Day of Rosh Hashanah. The curse of being a lawyer, I guess, viewing things with an eye towards resolving conflict or preventing them from even beginning.
Consider these facts: A man and a woman have a relationship for many years and from that relationship they produce a son. After 15 years in this relationship, the man begins a relationship with and subsequently marries another woman and has a son with her. Man loves both his sons equally, however his wife only has eyes for her son and doesn’t want her son to have to share his inheritance with the son from the previous relationship.
Do you see the dilemma? First and foremost, the man does not want the courts to sort through all of this. The probate court is a court of equity, so it will seek out the most equitable, the “fairest”, method to divide the estate. That might not be the best result.
What to do, what to do? Well, an estate plan is a must. The only way to control “from the grave,” so to speak, is to have a comprehensive plan in place. How that plan will look, however, depends on many factors, and it may even require the husband and wife to have separate plans. But it absolutely has to be written down in the proper form for it to be effective.
Think my fact pattern is a far-out prospect? This is the 21st century. The family unit is being torn asunder with more frequency and it is not uncommon for people to marry twice, three times, four times, or even eight times (Elizabeth Taylor!). Couple that with the fact that people are living longer and are having kids later in life, the fact-pattern above is becoming more common.
Back to my initial fact pattern. Check out the book of Genesis, Chapter 21, verses 9 and 10. Well, I will save you the trouble and set it out for you. You may not have the facts right at your fingertips, so here is a refresher: Abraham was an old man and had a son with Sarah’s maidservant, Hagar. The son’s name was Ishmael. About 15 years later, Sarah was blessed with a son, Isaac. You are caught up, so here is the verse I cited above:
“Sarah saw the son whom Hagar the Egyptian had borne to Abraham playing. She said to Abraham, ‘Cast out that slave-woman and her son, for the son of that slave shall not share in the inheritance with my son Isaac.'”
Well, I guess that is one way to deal with the situation; the current wife expels the first child and banishes him. Or, Abraham could have simply gone to the local attorney and had an estate plan prepared. It is said that Ishmael was the father of the Arab people, so can you imagine the thousands of years of fighting and strife that could have been avoided had Abraham simply drawn up a will and a trust?
Sounds like every day of my life, arguing in court the division of assets of estates amongst the beneficiaries. A good estate plan goes a long way.
And you thought this was all a new development, these second family situations…