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Today's family structures make estate
planning more complicated
The Chattanoogan /
November 7, 2004 / by Martin Pierce
Today’s many nontraditional families can cause significant headaches
(or worse) when it comes time to determine who gets what after a
death occurs. Among “family” types that are now not uncommon are
unmarried couples, spouses who have been married more than once,
adoptees, stepchildren, and children born outside of a conventional
marriage or with the assistance of medical technology. With the
advance of reproductive procedures, children can be conceived who
have an anonymous or unknown biological father or, in some cases,
who are conceived after the death of one of their parents.
Obviously, these types of relationships have a significant affect on
estate planning and inheritance. The laws in many states simply do
not provide guidance for many of these situations when it comes time
to divvy up the inheritance. The results range from hurt feelings,
the occurrence of injustices, and sometimes litigation.
Let’s take a look at just a few of these situations and the problems
created:
Inheriting from unmarried parents. In the past, these
children had no inheritance rights from the father. Most states have
rectified this problem and now permit children of unmarried parents
to inherit from their mothers and, upon meeting the individual
state’s proof and timing requirements, these children may well also
be able to inherit from their biological fathers.
Adopted children inheriting from ancestors. State laws vary
concerning whether or not an adopted child can inherit from an
ancestor other than the adoptive parent. For example, some states
require the child to have been adopted as a minor in order to
qualify as a grandparent’s descendant.
Post-death conception. Many states provide that a child born
within nine months or so after a parent’s death is nonetheless
entitled to inherit from the deceased parent and other ancestors of
that side of the family. But what about a child conceived after a
parent’s death. Due to medical advances, conception can now
sometimes occur well after a biological parent’s death. The states
have been slow to take into account a host of fertility and
technological advances in this area.
What should you do? Until laws catch up to medical and societal
realities, children conceived with the aid of reproductive
technologies or who are part of an untraditional family should be
very specifically provided for (or specifically omitted) from the
estate planning documents of parents, grandparents and those who
potentially or arguably may fall into either class. These people
must be sure their estate plans address these children’s rights, one
way or the other.
Those who find themselves in these circumstances should have an
estate planning professional prepare, review or revise their estate
and retirement plan documents, as well as insurance policies and
annuity contracts. Because the legal issues in these and other areas
become more complex every year, a do-it-yourself approach is not an
option and even seeking general professional help may be perilous.
You should depend on a certified estate planning specialist in such
circumstances. Let me know if you have questions or if I may be of
assistance to you or your family members.
Martin Pierce is a Business and Tax attorney who is Certified as an
Estate Planning Specialist.
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