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Friday, July 2, 2010

If my child dies before me, does my son or daughter in law get their share?

Estate planning lawyers ask a lot of "what if?" questions. One of the questions we ask parents who are leaving their estates to their children is what they would like to see happen to a child's share if that child should die before they do. I know nobody wants to think about this, but it's an important question for the proper set-up of the Will.

I've noticed that there is some misunderstanding out there about what will happen with a child's share in this circumstance. Many people assume that the child's share will automatically go to the child's spouse (the son or daughter in law). Others assume that there is some obligation on them to leave something to the son or daughter in law. Neither of those things is true.

Inheritances generally follow the family's bloodlines. This means that if you do not leave a Will, your estate is divided among your spouse and your issue - that is, your direct descendants in your bloodline. Nothing goes automatically to anyone who is married to your issue.

When parents make Wills, they generally state that the estate is to be divided among their children, and that if one of the children should die before them, the deceased child's share is to be divided among that child's children (the parents' grandchildren). As a side note here, if you want to include grandchildren, insist that your lawyer not use the word "issue", which means all following generations.

It's unusual that parents want to leave a deceased child's share to that child's spouse, but it isn't unheard-of. In the case of longstanding marriages, in particular, the parents may want to leave some or all of the child's share to the spouse. It's always the client's choice. In cases like that, I recommend that the gift be made to the son or daughter in law only if he or she was married to and living with the parents' child at the time of the child's death. That eliminates shares going to spouses who are separated or getting divorced.

You can't leave a gift of money to your child on the condition that he or she doesn't share it with his or her spouse. Once you've given the money away, you have no say in what the beneficiary does with it. Also, you can't leave money to your child on the condition that he or she doesn't marry someone you don't like. If you are in a quandary about what to do regarding a child's share, talk to an experienced estate planning lawyer to get some ideas and find out the facts.

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