As a strong recommendation that I consistently encourage clients to adopt, parents overwhelming choose to leave their children equal shares of their estate, but due to personal circumstances this is not always the case. If you plan to provide more (or less) for one child in your estate plan, understanding the consequences is key.
It is natural for parents to want to treat their children equally in their estate plan. However, there are special circumstances in which a parent might choose to leave children unequal shares. For example, if one child is providing caregiving of an elderly parent in lieu of pursuing a career, a parent might understandably want to compensate that child for their lost income earning potential. Alternatively, if one child is overwhelmingly financially better off than another child, then the parent might want to provide more for a child who has a greater need for the funds.
In a different context, the decision of how to allocate funds amongst a parent’s children may be due to one child having special needs or if there is a family business that one child has adopted as a career and wishes to succeed their parents after they are gone. It’s also possible that the parents have already provided more for one child during their lifetime, perhaps by advancing funds to pay for higher education or providing funds to assist with the purchase of a house.
Whatever the reason for leaving your children unequal shares, the important thing is to discuss your reasoning with the children. Sit down with them and explain your decision-making process. If you feel like the conversation could be difficult and contentious, you could hire a mediator to help facilitate the discussion. These circumstances can frequently result in misunderstanding and feelings of favoritism or jealously by children who have been provided less. The classic example is the caretaking child who stays with mom or dad and provides full time care as parents age, and non-caretaking children assume theft or self-dealing is occurring due to the regular interaction with an aging parent. And even more unfortunately, these accusations, true or not, can frequently cause lifelong estrangement of the affected children.
In an ideal situation, your children may be understanding of your decision, but if you are concerned about certain children disagreeing and/or potentially suing to challenge your estate plan after you die, you may want to take additional steps:
Draft your will and estate plan with the assistance of an attorney and make sure it is properly executed. Find an attorney near you. To avoid accusations of undue influence, do not involve any of your children in the process.
Explain in detail your reasoning in your estate planning document and make it clear that it is your decision and not the influence of the child who is receiving more.
Include a no-contest clause (also called an "in terrorem clause") in your will. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.