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Monday, November 4, 2019

Does this will create rights for the kids? Nope.

There is a very common clause in wills that seems to be misinterpreted often, causing quite a bit of confusion and upset. Today I'd like to discuss it and hopefully shed some light on it.

The phrase says "I leave my estate to my spouse, if she survives me. If she does not survive me, divide my estate among my children." This type of phrase (with some variations in wording) is usually found in mirror wills. Those are the wills made by two people in a marriage or partnership. Their first wish is to leave everything to each other, but of course they don't know which of them will pass away first. That's why it's necessary to have an alternate - or Plan B - in case their spouse dies before they do. Plan B is to leave it all to the kids.

The problem arises because of the way the children interpret the phrase. They sometimes take it to mean that Dad is leaving everything to Mom, and then when Mom passes away, Dad is leaving it to the children. If, after Dad dies, Mom chooses not to leave the estate to the children, the children may feel angry and betrayed. The question I hear quite often is "doesn't Dad's will leave the estate to us when Mom dies?" However, that is not at all what is meant by the clause.

Let's use Jack and Diane as an example. They are a married couple with a son named Kevin. Jack's will says that if he passes away and Diane is still alive, Jack's estate goes to Diane, but if she has already predeceased him, Jack's estate goes to Kevin. Let's say that Jack passes away and Diane is alive and the estate passes to her. After that, the will is no longer relevant. Its terms have been followed properly. It does not create the right for Kevin to inherit.

If Diane doesn't change her will, on her death the estate will pass to Kevin. This is not because of Jack's will, though; it's because of Diane's will. If she wishes, Diane can make a new will leaving everything to a charity or a new spouse or wherever she wants, and it does not violate the terms of Jack's will. Once she inherits the estate from Jack, it's hers and she can do as she likes with it.

All of this is assuming that Kevin is an adult and is not financially dependent on his parents.

In some circumstances, it is possible to create a trust so that Diane cannot dispose of the estate and must leave it to Kevin. However, such a trust is not created by the clause we've looked at in this post.

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