I’ve mediated hundreds of trusts and estate cases and can share a simple remedy for avoiding fights among your children after you die.
Most parents are naturally inclined to try to treat their children equally while raising them, continuing into their young adult years. Parents often make their initial estate plans during these early years. Those plans usually provide that offspring are to be treated equally in every measure. As parents age, we see that children follow different paths, some being more financially successful and stable than others, however you define success. As parents advance further in age, they have greater caretaking needs and some children become bigger helpers than others. This is due in part to geography, and in part to our relationships with each adult child. This is also in part due to the logistics of living situations like space for inhouse care of the parent, proximity to health care or assisted living, existence of and relationships with in-law spouses and grandchildren, work demands of the children, and so forth.
Often estate plans get changed when the elder dependent shows their gratitude by giving the caregiving adult children an outsized share of their estate. In so doing, the elder doesn’t realize the harm that may be inflicted to their offspring and to their relationships with each other.
No matter what has happened in the lives of the parents and children, no matter who has provided the most caregiving of the parent, no matter which child is the most successful, the meaning of the unequal treatment seriously hurts the feelings of the surviving children. How you are treated in your parent’s estate plan is the penultimate statement of your parent’s love for you /or not. This feeling, often incorrect, nevertheless seems universal, based on my experience. This seems to be the adult child’s reaction in virtually all the cases I’ve mediated in which the parent has provided unequal treatment of their children in their estate plans, regardless of how much money is involved. Please note that I only mediate situations in which a dispute among the surviving siblings exists. The cases that are not disputed are not part of my experience, meaning that unequal treatment might very well work in some families, or at least not rise to the level of an outward dispute. In any event, I do know that there is a distinct pattern in which unequal treatment seriously impacts the adult children and the harmony of the remaining family in many cases.
In my view, the remedy is straightforward – treat adult children equally in estate plans. If one child is substantially more successful than others, you can always state (in a letter and in the plan) that you hope that the children will help one another. If an adult child has a diagnosed disability, mental or physical illness, you can specifically provide for that care because it is verifiable, and most siblings will understand such a provision. If you elect to pay an adult child for your care, for which you would otherwise need to pay a third party, draft a contract for care and pay no more than the market rate for that care. Before you do that, discuss the contract with all adult children. And, if you do for some reason choose not to treat your children equally, it is critical that you explain your thinking to your children, face to face, and in a writing that can be read by all after you are gone. I hope that my experience reduces conflicts in families.