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Monday, November 12, 2018

Cutting Someone Out Of Your Will May Be Harder Than You Think

When former President Benjamin Harrison died in 1901, his two oldest children inherited nothing. Harrison specified that his second wife, Mary Scott Lord Dimmock Harrison, was to inherit everything. Harrison two older children were already married with children of their own, so it wasn’t like he was leaving them destitute, but it did get people talking once again about the former president’s love life.

You see, Mary was Benjamin’s late wife’s niece. She had lived at the White House during Harrison’s presidency along with her mother and grandfather, and served as a sort of social secretary to the First Lady, her beloved aunt Caroline. In 1892, Caroline died and Benjamin lost his bid for re-election. A few years later, in 1896, Benjamin and Mary wed. He was in his mid-60s and she was in her late 30s. A year later, the couple had a daughter, Elizabeth.

Benjamin’s children from his first marriage, Russell and Mamie, were distraught. They weren’t really upset that their father remarried, but the fact that their cousin was now their step-mother, and their new baby sister was a decade younger than their own children, was just too much. They three never spoke again, and as mentioned, Benjamin did not leave Russell and Mamie anything when he died.

Back in the day, cutting a family member out of your estate plan was that simple, you didn’t mention them, they didn’t get anything, and everyone moved on with their lives. Today, it’s a bit more difficult.

Laws have been passed to ensure that children from previous marriages, adopted children, children born outside of wedlock, and children born after an estate plan is already in place are entitled to inherit something if a parent dies without an estate plan, or with a plan that does not specifically mention them. There is even a federal law, the Employee Retirement Income Security Act of 1974 (ERISA), that sets aside some portions of a person’s estate for ex-partners.

These laws make it somewhat difficult to disinherit a close family member, but it can be done. The first thing we tell clients who want to “cut someone out of their will” is that we actually recommend they do their cutting via trust. In order to preserve privacy and speed the probate process, most wills today do little more than appoint guardians for underage children and dump all one’s assets into a trust.

Unless they become the subject of a lawsuit, the documents created to govern a trust remain private. They are therefore a better place to name people you are specifically not including in your estate plan. You can also include a brief explanation of your actions if you so choose.

Trusts are also a popular way to leave money to your loved ones because you can put conditions on the money you leave them. For example, if you are concerned about leaving money to a loved one that has struggled with addiction, you can specify that the trust only pay for things like housing, or that trust funds can only be distributed if your loved one is sober.

Conditions can also be placed on a trust to make it into a special needs trust that provides support for a loved one that needs specialized medical care without taking away your loved one’s eligibility for public benefits.

Although estate planning is more complex than it was when Harrison cut his kids out of his will, it is that way for good reason. Today’s law protects children who may have been inadvertently left out of an estate plan, and allows people to make plans that are much more customized and suited to the specific needs of individual families.

 


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| Phone: 803-594-4453
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