Estate Planning and Your Lawyer’s Bias

We are each inevitably biased based on our own life experiences, education, community and family values, etc.  The key in any discussion about bias is whether we are able, or willing, to step back and try more objectively at times to observe our own bias.

This blog post is my recommendation that you be aware of your lawyer’s own bias and how it may possibly influence your estate planning.  I provide below only limited examples. But, my broader point is for you, as a client, to feel comfortable questioning and challenging your lawyer’s recommendations for the design of your estate planning.

Example One — My experience is that an abundance  of estate planning documents I have read over the years include a descendants-only feature in the event, for example, a child (we will call her Susan) dies, who at her death has no children.  In this event, this typical descendants-only provision requires that Susan’s share of the property now is to be divided only among her other siblings (and their descendants). This provision is designed to make sure Susan’s parents’ property passes only along the parents’ line of descendants. It does not include spouses of those descendants.

Carrying this Susan example further, assume Susan had been happily married for 20 years to Bob at the time of her death. Remember, Susan had no children. Bob always fit in well with all the family members, including Susan’s parents. But, with this descendants-only provision at Susan’s death, Bob gets nothing.

I am not suggesting Bob should or should not get anything. My point is that most lawyers do not address this situation adequately with clients and often use the “descendants-only” language in the estate planning document as a matter of habitual rote. I also believe many clients would be shocked to learn there are no options for a spouse under a circumstance similar to this Susan example.

Maybe your lawyer has himself or herself had a bad divorce in the past;  or had a sibling or parents who experienced a painful and costly divorce. This is an example of the lawyer’s own experiential bias that can make its way into your estate planning documents — without sufficient discussion with you about other available options.

Example Two — To my “lawful” descendants is a term I still see frequently in estate planning documents that I believe may stem from the lawyer’s own bias (religion, community, political, etc.) and that is not sufficiently discussed with clients.

Here is what you need to know about this “lawful” reference to make sure you agree or disagree to use that term in your estate planning documents. Again, my point is this reference and its potential effects demonstrate another example of rote-mentality, too often not sufficiently discussed with clients. Here is an example:

Let’s assume I have a daughter who has a young son, but she is not married to the other parent. Assume also that we all love and treat that son (a grandchild in this example) fully as a family member with absolutely no distinction as to my daughter’s non-marital status.  Assume also my own estate planning documents provide for my property to be divided and held in trust only for my “lawful descendants”. Assume also I die, in this example.

It is my opinion that my grandson (in this example) is most likely cut out of my estate plan because he is not a “lawful” descendant. Technically, he was born out-of-wedlock at the time of my death. Also, arguably this non-wedlock status is locked-in at the time of my death relevant to the “lawful” definition in my documents. I do not believe my daughter’s subsequent marriage — after my death — to the other parent cures this problem.

More importantly, I would hate for my family to face the above problem, including costly efforts to try and convince a court, etc., to include this grandson as a descendant for purposes of my estate planning.

In other words, the modifier “lawful”, in my view, does nothing more than set the stage for disagreement, disputes, and legal issues as to whether I intended to leave out my grandson with my use of that modifier in my documents. Courts are generally bound by the wording within the four-corners of estate planning documents. The term “lawful” simply creates far more problems than benefits for an estate planning document.

For those of you who wish to read more about the potential limitations of this “lawful” element, click here for a relevant 2010 Georgia court opinion in Hood v. Todd, 287 Ga. 164, 695 S.E.2d 31 (2010). Note also the dissenting opinion, indicating even the court had difficulty in determining what “lawful” meant in this case.

My recommendation is that your estate planning documents include a more expansive provision for the definition of “descendants” so as to bring the definition more fully into the light of current cultural and scientific realities. Make sure you discuss with your lawyer and conclude with a clear understanding about the final “descendants” definition in your estate planning documents.

Example Three — I remain surprised at the extent to which I see estate planning documents that fundamentally treat males and females differently. For example, the estate plan might provide for greater outright provisions for a son, but strict trust provisions for a daughter. Or, the estate planning document names only sons as fiduciaries, with the daughters not being named for these positions.

Again, I am not suggesting a right or wrong approach. But, in my experience, this is an area with a great deal of old-school lawyer bias, and without sufficient informed dialogue and consent from clients.

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