A Guide to Dividing Your Estate Unequally
Dividing your estate among family can be complex and at times, difficult. Nevertheless, not having a will may lead to more complications and is ultimately irresponsible. Quite often, equally dividing assets among children makes the most sense. However, there may be some cases in which giving each child an identical inheritance might not be the best decision.
Keeping in mind the distinctions between leaving an equal inheritance, in which each child receives an identical amount, and an equitable inheritance, in which each child receives what is appropriate, provided the circumstances, may help you decide what’s best for you and your family. The choices you make might affect sibling harmony as well as whether your intentions are executed as you intended.
When each of your children has similar lifestyle needs, received similar support in the past from their parents, or other family members, and are mentally and emotionally responsible, it may make sense for each child to receive an equal inheritance.
If your legacy involves real estate and other tangible assets, you will need to determine a dollar amount for each and decide what makes the most sense to leave for each child. Location may also be a deciding factor in whether or not a child receives a home, for example. If one lives nearby and has always enjoyed that house it could make the most sense to leave it to them. Any existing differences in values of properties could be left in cash or other assets.
Less pleasantly, you may decide to leave an equal inheritance to your children in order to avoid any costs of conflict, both emotionally and financially. The best way to decide who receives what may be to weigh the likelihood of a child involving litigation in the estate. If that becomes the case, your assets may also end up differently than you originally intended.
Leaving Varying Amounts
Equally distributing your assets to your children may not always be the best option or feel right. For example, one of your children may be acting as your caregiver and you feel they should be rewarded for their time and efforts. Alternatively, one child may have received more throughout their lifetime than another - whether it was their wedding, grad school or a down payment on a house. In this case, it may be advisable to leave an equal inheritance to your other children and a smaller amount to the child you previously gifted money. This would fall in the equitable, not equal guideline of distribution.
If you have a child who is unable to care for themselves, you may opt to leave a portion of your estate to provide for that child’s care through a special needs trust. A disabled child may need support to meet living expenses and medical needs that their siblings are likely to understand.
There are a number of circumstances in which you may consider leaving different amounts to your children. With a blended family, you may have one child who can expect to receive support from another parent; or perhaps you run a family business and one child owns a larger share than others; alternatively, you may have a financially irresponsible child or simply one that can’t be trusted with an inheritance.
Regardless of the division of assets, it’s always important to communicate your intentions to all those involved so that your requests are clear and there are no surprises.
How to Protect Your Estate
By leaving unequal amounts to your children, you put yourself at a higher risk of them being unhappy or unsettled with the decision. In order to minimize the chances of one of your children contesting your will in court, as well as their chances of winning if they do, there are a few options available to you.
First, a non-contestability clause states within your will that any inheritor who takes your will to court forfeits any bequests. In order for the clause to be effective, your child has to have something to lose and you’ll need to leave them enough that they likely have more to gain by accepting the outcome than by going to court.1
This may not be your most favorable option but it may mean the best chance of keeping your will intact. This type of clause varies by state so it’s important to check your state’s laws before considering this route.
Other ways to avoid challenges with your will include:
- Having your doctor as a witness when you sign your will in order to invalidate claims of lack of capacity.
- Excluding each of your children from the will-writing process to invalidate claims of undue influence.
- Discussing your will with each child to explain your reasoning and avoid surprises.2
If a lawsuit does arise regarding your estate, it is most likely to end in a costly settlement that will undoubtedly alter your estate plan. Funds will likely end up in a different place or with a different person than you had originally proposed.
The Bottom Line
Regardless of how, and to whom, you leave your inheritance, it’s important to keep in mind that it is your wealth and you have the right to do with it what you choose. That being said, whether you leave an equal or equitable inheritance to your children should depend on your existing relationship and the lifestyles they have led. If perceived inequality takes place because of uneven distribution of your assets, the likelihood of legal mediation increases and it’s up to you to decide how significant that risk may be.
Planning your estate carefully may not be easy, but it is imperative. It’s also important to meet with a knowledgeable and trusted advisor should you have questions or concerns about creating your will and the options available to you along the way.
Please give us a call at 330-836-7000 to schedule an introductory conversation and we will begin helping you build a solid estate plan for your family. You can also schedule an introductory conversation with us here.
Since 2004, we have been providing Fee-Only Fiduciary Advice to our clients in Northeast Ohio and all across the country.