On March 2, 2023 the Family Law Section of the state bar association dropped a podcast hosted by my partner Aaron Weems with an estate lawyer, Mary Kay Kelm. It covered a broad range of topics including diminishing capacity of people making estate plans, rights under wills and rights to contest wills or diminish their effects. I listened to the interview because I had just prepared a draft blog on these topics but left it unpublished because I found my own effort to distill these topics to be too “complex.”
And it is complex both legally and emotionally. When we think about our own mortality we like to capture images of a process that is quick, painless and employs that overwrought phrase “surrounded by friends and family.” We conjure DaVinci’s Last Supper with fond farewells. Unfortunately, especially in a world where the presumed decedent has had more than one marriage, the events after that mythical last supper often unleash lifelong grudges and other animosities that can crowd the dockets of probate courts for years.
Let’s invoke Charles Dickens to help us see the ghosts of death present and future. You and your second spouse visit the friendly estate lawyer to prepare wills. This seems a simple process. Presumably, you are both motivated to take care of each other. But what about the kids?
You each have kids from your first marriage and then there’s the one from this second marriage. Each of the kids has “needs.” Some are real and some are imagined. Hate to say it but many children today view your money as “family money” which is a euphemism for “their money.” You perceive it as “your money.” They see it as “their money for which you are custodian for now.”
The other challenge we are facing today is that the flesh is outliving the mind. As we grow older, our capacity to process information does decline. We like to laugh about “senior moments” but they are real and almost all of us have lived to watch a once wise older relative do things that were risky or stupid. The real issue here is that when we reach an age of mental decline, no one sends us the memo. It’s the line between forgetting something at the grocery store and forgetting where the grocery store is.
When that happens the family members who were otherwise preparing for that beautiful last supper sometimes get the carving knives out. Your daughter from your first marriage never really forgave you for “What you did to mom!” Your spouse’s son was irate at both you and your spouse when the two of you spent $50,000 on rehab for the child you had together. Do you recall the Thanksgiving when the kid screamed at both of you: “That $50,000 is lost money, Stacy will always be a junkie.” The pilgrims got very quiet that day. But they never forgot.
Recently we were consulted in a case where the seemingly happy couple were about to celebrate 50 years of marriage. It was a second marriage and there were kids around from the first. Wife #2 was nervous despite this celebratory event. There really didn’t seem to be an estate plan and her husband was starting to lose his mental capacity despite a lengthy career as a physician. So, along the way, husband decided rather than “choose” among his children, he would give all four of them a power of attorney. They would be fair with each other and with their stepmother right? Well, fairness is in the eyes of the beholder and “Behold” some of the kids started to move the money that they now regarded as theirs. Those kids didn’t really have much regard for their stepmother as she had “stolen” dad from their real mother a half century ago. Dad never got his last supper because the food fight over the family wealth broke out soon after the children began to move his money. Sadly, he didn’t really understand what was going on.
This couldn’t happen to you, right? Your second spouse and all of those kids will be reasonable. That comment about the rehab money being wasted or “counting against her inheritance” wasn’t really meant. Or was it?
If you are in a second marriage and perhaps even if this is your first, you should drop in on that friendly estate lawyer who did your wills and ask that person to help you strategize death. Not the dying part. Higher forces will govern that. But if you do die, how will your surviving spouse pay the bills in the short term? Are there obligations to a former spouse? Who gets your non probate assets like your qualified pension plan or the house in Avalon? Most people doing wills don’t get into that nitty gritty but if you don’t you may be doing your spouse and your kids a huge disservice. Also ask about these powers of attorney you signed and ask about what could be a worst case scenario. Your kids would never do it but if you read the papers other people’s kids are not above “moving the money” you still see as yours. Estate lawyers like to trumpet the benefits of powers of attorney, medical powers and guardianship powers. They are quite useful in the right hands. But perhaps you and your spouse should have a real conversation about what is really going on in your combined families. Your spouse may be quietly quaking at the prospect that your M.B.A. daughter who works for a bank will be deciding whether she can still live at Fancywood Estates when you get traded to “assisted living.”
There are no easy answers to this. But that’s why Dicken’s wrote Christmas Carol. Your estate planner told you about how to avoid probate and how to avoid estate taxes. But unless you get it right, estate litigators could consume all the money you saved while doing your estate planning.
The podcast by Mr. Weems and Ms. Kelm is below: