New York Estate Planning & Elder Law Blog
All too often a client comes in with a sad tale about an estranged child. Naturally, they are at a loss as to what to do about the situation when it comes to leaving that child an inheritance.
Years ago, the famous advice columnist Ann Landers wrote that her all time most requested column for reprint was on this very subject. Ann wrote that an inheritance should be considered a gift and that if the gift is not deserved one should not be expected. While that may have been good advice at the time and perhaps still is in most cases, like many things it is more complicated today.
In practice, we find that many of these once loving sons and daughters have married individuals with borderline or narcissistic personality disorders. Their spouses are manipulative and controlling. They seek to separate the loving son or daughter from their family so as to better control their spouse. The estranged child knows from experience that going against the wishes of their narcissistic spouse is like throwing gasoline on a fire — so they go along to get along.
Why does this happen? The manipulator has an enormous advantage over the clients’ son or daughter. The manipulator is a professional, having been this way all their life, honing their skills. The estranged son or daughter is an amateur — they have no experience in being manipulated. It may take years for them to even understand they are being manipulated and then more years, if ever, to build up defenses to the manipulation.
When young children are involved, the estranged child well knows the adverse consequences of having any normal relationship with their children should they seek a divorce from the narcissist.
Our advice is to try to understand and be compassionate with an estranged son or daughter in this situation. Set up an Inheritance Protection Trust (IPT) that may only be used for them and your grandchildren. The percentage to leave to the IPT is up to you.
The reasons for estrangement are as different as are families. As Tolstoy famously remarked, “Happy families are all alike; every unhappy family is unhappy in its own way”.
One of the keys to resolving what to leave the estranged child is determining who in the family are they estranged from and for how long and for what reasons (if known). Sometimes they are estranged from only one parent and the other parent does not wish to see that child disinherited. Sometimes they are estranged from the parents but not their siblings — or some but not all of their siblings. It’s complicated. Often, hope springs eternal that the estranged son or daughter will come back into the fold.
In cases like these we like to use a technique we call “Schedule A”. Generally, in a trust or a will, you will find the dispositive provisions, i.e. who you are leaving it to and in what amounts, somewhere in the middle of the document. When you amend the trust, or prepare a codicil to the will, you may legally change your wishes. Nevertheless, all of the parties can see what it was before and what the change was. For example, if you left someone out and now you are putting them back in, they will clearly see that they were left out before, and vice versa!
To avoid the hurt, confusion and possible litigation that these emotionally fraught situations may engender, we recommend using a “Schedule A” to the trust. Here, in the body of the trust we state that the wishes are provided in “Schedule A” annexed hereto which may be replaced from time to time with the same formalities as the execution of the trust. Now, when a change is made we destroy the old “Schedule A” replacing with the new one avoiding hurt feelings and misunderstandings.