The Jewish High Holidays start this week and each year as I sit in temple and allow the holiday to envelope me, I am drawn away by the subject matter of the Bible readings associated with the Jewish New Year and I think: Could simple estate planning have prevented war as we know it? Ok, so I may be a little facetious, but give it a good hard listen before you discount me as being silly.
Consider these facts, situations that attorneys like me who litigate probate and trust conflicts and challenging family dynamics see every day: 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 divorces, begins a relationship with another woman, subsequently marries that woman and has a son with her. There is no doubt that the man loves each of his sons equally—but the second wife, she has eyes only for her son and really is not concerned with son #1.
Well first things first—the father is getting pressure to put something down on paper. His second wife simply does not want the courts to have to sort through this problem. Sure, the courts may attempt to equalize things, the court being concerned with equity and fairness, but the second wife certainly doesn’t want the court’s involvement because it gives the first son a fair shake.
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. Otherwise, courts, attorneys, volunteer attorneys and referrees will be in charge of sorting through the mess.
Think my fact pattern is a far-out prospect? This is the 21st century. The family unit is frequently changing due to the prevalence of divorce 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; in fact, it might be approaching the norm.
Back to my initial fact pattern. Take a look at the book of Genesis, Chapter 21, verses 9 and 10. Ok, nevermind. I will save you the trouble and give you the cliffs notes version. Abraham, commonly believed to be the first Jew, was an old man and had 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.
“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 commonly believes that Ishmael was the father of the Arab people, a people who trace their roots back to the first Arab, the banished Ishmael. 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?
Sarah didn’t want her son Isaac to have to share with that other child, Ishmael. She didn’t want Isaac’s birthright to be divided equally amongst the two boys; she maybe even felt betrayed by Hagar, this woman whom she trusted as her maidservant, who gave Abraham something she herself could not give him, a son.
It isn’t that farfetched—had Abraham had an estate plan, maybe he could have found a way to equalize the inheritances—Isaac’s bloodline eventually inherited the land of Israel, while Ishmael’s people might feel as if their birthright was stolen from them by the actions of Sarah and they have made it their mission to fight for their inheritance.
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. Having something in writing is key. Who knows—it could have saved thousands of years of war and strife. It certainly has the capability of saving years of litigation and unreasonable expense.
Have a great week.