If you are considering giving an unequal inheritance to your adult children in your will, there are probably good reasons for your decision. It is important to communicate these reasons to your children to minimize conflict, hurt feelings, or a challenge to your will in probate court.
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Difference Between Equal Distribution and Equitable Distribution to Children
There is a difference between giving your children an equitable versus equal inheritance. Equal distribution is when you give equal amounts to your children. For instance, if you have two children and you leave everything to them in equal shares. Equitable distribution can be very different. Sometimes a child has received more during your life, so you want to equalize this upon your death. Therefore, you give proportionately more to the other child in your will. You may wish to provide an equitable distribution to your children in certain circumstances.
1. One Child Has Special Needs
If you have a child with special needs who is unable to work or otherwise make a living, you may want to gift a higher percentage of your estate to this child. It does not matter if this is a minor child or an adult because the needs endure through their lifetime. This is particularly true if the other child is thriving. You must consider if this gift will conflict with any government benefits your disabled child is receiving. You may also want to set up a special needs trust to manage and distribute the assets to avoid interference with government benefits. Federal and state law regulates these government benefits, and legal advice from an estate planning attorney is best if your child receives these benefits.
2. One Child Has Received More Money and Assistance During Your Life
Perhaps one of your children has received benefits from you during your lifetime that your other child has not received. You could have paid college and graduate school tuition for one child but not the other. Perhaps one child is a struggling artist who needs more financial support during your life than the other child. In each of these situations, you may feel it is appropriate to balance out the equation proportionately in your will.
3. One Child Has Been a Caregiver
Perhaps one child has dedicated much time and effort to taking care of you during your lifetime, and you want to reward or compensate this child with a larger gift in your will. Perhaps this child is living with you to provide care and you want this child to inherit your home, real estate, and maybe your automobile.
You may have a blended family with stepchildren who will inherit from another parent or your surviving spouse, so you want to provide a small gift in your will while leaving the majority of your estate to your biological children.
5. One Child Is More Successful Than the Other Child
It may be that one child is financially successful and does not need a large amount of money, while your other child is not financially secure. You may think that it is most appropriate to leave most of your estate to your child who needs the money.
6. One Child Participates in the Family Business
Perhaps one of your children has given much time and energy into the family business for a long period of time, while the other child has no interest in it and has not contributed to its success. You may decide that the time, energy, and interest merit the reward of the family business to that child. Or you could take out a life insurance policy to benefit that child and use the funds to pay the other child for the business. Or you could provide in your will that the interested child can purchase the family at a substantially reduced rate, with the proceeds going to the other child.
Communicate Your Decision and Your Reasons to Your Children
You may want to meet with your children and explain why you are leaving them disproportionate gifts. This can be a successful meeting or go awry if one child takes offense and does not understand your reasons. This is the time to clear up any confusion and minimize resentment. The downside here is if a child does not understand your reasons or feels they are unfair, this could harm the relationship during your life.
Another way to communicate your reasons is through your will. You can cite your reasons in the will that will only be read after your death. You will have to be sure that you keep your will secure so that your children cannot read it while you are alive if you do not want this information available to them.
You could also prepare a letter of instruction and explanation that fully details your reasons and affection for your children. This letter can be placed with the will for review upon your death.
Finally, you can incorporate a no-contest clause into your will. This clause states that if one of your children unsuccessfully contests the will, that child will forfeit all inheritance. The no-contest clause is harsh but sometimes used to send the message to the children of the testator’s firm intentions in the will and to fend off undue influence claims.
Create Your Estate Plan
If you are interested in your estate planning, our Estate Planning Documents are state-specific and easy to use. You can create a Last Will and Testament, Financial Power of Attorney, and Health Care Directive and Living Will. Once complete, you will have confidence that you are distributing your estate to your beneficiaries, family members, and loved ones according to your wishes when you pass away.