Maryland Bar Bulletin
Publications : Bar Bulletin : March 2005

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Your Children And Your Will
~A house divided?~

By David M. Morris

Someone once said that “life is like a box of chocolates – you never know what you’re going to get”. Where estate planning is concerned, perhaps a better description would be that life is unequal in its distribution of assets and resources. That same inequality may carry over into your family, with children of different ages, talents, interests, needs and degrees of material success.

When planning division of your assets, you may believe in a policy of “share and share alike.” This is the easiest method (and often the way to avoid conflicts and complaints of discrimination), but you should recognize that equality does not necessarily mean fairness. You must, therefore, be willing to seek a division of assets that will take into account the particular circumstances of each child, even at the risk of producing some conflict.

A more practical approach to the division of assets is one in which you recognize and compensate for differences in the abilities and needs of your children. Through your estate plan, you have a chance to provide a measure of fairness that your children may not otherwise have found in their own lives.

The process is a delicate one, certainly more complicated than dividing a pie into equal slices. Bringing about family fairness through an estate plan may be the last chance you have to give your children an equal start in life or to help them compensate for bad luck or bad fortune.

Consider the following scenarios:

Age. Assume you have two children, ages 22 and 12. Should you split your estate in half, even though the 22-year-old has been through years of private school education and college and the 12-year-old has further to go?

Assets. Assume your daughter becomes a partner in an investment-banking firm and quickly builds up $3 million in assets, while your son becomes a high school English teacher who earns $29,000 per year. Should you leave your estate in equal parts to your son and daughter?

Past gifts. Assume you have given your 24-year-old son $100,000 worth of stock in your business as an inducement for him to work with you. You have not, however, given your 18-year-old son a similar gift. Should you divide the assets in your estate on an equal basis?

Investment. Assume you have given one child stock in company A, which has quintupled in value to $300,000. You have given another child stock in company B, which has gone bankrupt. How should you then allocate the balance of your assets?

In all of the preceding examples, an equal division of property has the potential to create or perpetuate unequal results. Thus, there is an even greater need for financial and estate planning that leads to reasoned and careful decisions about how you leave property.

Fortunately, there are ways for you to achieve more equitable results. Oftentimes, assets such as a business that will be turned over to one child can be offset by the cash from life insurance policies that will go to other children. Appropriate adjustments should be considered and implemented in a way that indicates they are made for the purpose of achieving a greater level of fairness among children, rather than out of preference for one child over others.

These are difficult decisions to make. You’ll need to carefully discuss your estate planning needs with your legal or tax counsel. However, in the long run, your children and family will benefit from your planning.


David M. Morris, JD, CLU, is President of FranklinMorris, Coordinating Broker for the Bar Associations Insurance Agency, Inc. For more information on the insurance benefits available to MSBA members, visit our website at www.msba.org/departments/membership/baia/.
 
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Publications : Bar Bulletin: March, 2005

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