Beyond The Will

Meeting your parent’s new partner for the first time over the holidays can be a stressful experience. Other than having to share your favorite family dessert with this new individual, you might also begin to question how this relationship could adversely affect your (and your children’s) inheritance. As with all fiduciary litigation cases, the need to worry is mitigated if proper planning is established beforehand. However, one should understand the consequences of both testate and intestate succession and what happens if your parent decides to re-marry.

Assuming your parent has re-evaluated their estate plan after divorce or the death of their first spouse, exposure to litigation over your children’s inheritance is lessened. Your parent’s new partner will likely have no effect on your inheritance if your parent has already made certain bequests and provisions in your favor. If your parent’s properly executed will directs that the residue be split between you and your siblings, that direction will stand. Specific bequests, such as a gift of $1,000 to each grandchild, will also remain untouched. Of course, mom or dad’s new love interest could contest the validity of the will, but they would need to meet the standards explained below.

One should remember that every adult of sound mind has the right to make a will. Your parent may ultimately decide to re-draft their estate planning documents to benefit their new partner, which is a perfectly legal decision to make. As long as your parent has testamentary capacity and formal execution procedures are followed, your parent should be allowed to make those changes. If you suspect a lack of capacity or undue influence exerted by your parent’s new partner, a will contest may follow. The burden is on you, the person alleging the undue influence or lack of capacity, to prove it. If lack of capacity is proven, the entire will may be set aside. If undue influence is found, it is possible the judge will set aside just those provisions procured by improper means and allow the rest to stand. A claim of undue influence is an appealing route to go down, especially if you believe your parent’s partner is solely interested in the money. It is important, however, to remember that you need to prove that your parent was actually overpowered and became subservient to the person who is alleged to have exercised it (their partner); a high threshold to meet.

If your parent does not have an estate plan and has no intention of creating one, the rules of intestacy will determine your inheritance. Massachusetts statutes (such as G.L. 190B, § 2-101), instead of a written document, will determine distribution to your parent’s heirs. If your parent dies without a surviving spouse, assets pass to their descendants per capita at each generation. The statute lists the order in which property passes and makes no provisions for a decedent’s “partners.” Meaning, if your parent passes away without marrying their partner, their assets will be distributed outright to their children (you).

If your parent decides to re-marry, intestate statutes will likely, and negatively, impact your inheritance. Under the Massachusetts Uniform Probate Code (MUPC), a surviving spouse will take the entire estate if a decedent has no descendants or if the only descendants are also descendants of the spouse. If you are a descendant of your parent (which is obvious) and you are not a descendant of their new partner (which is also obvious), then the surviving spouse will not receive the entire estate. However, the following distribution to the surviving spouse will occur by law: “the first $100,000 plus ½ of any balance of the intestate estate, if 1 or more of the decedent’s surviving descendants are not descendants of the surviving spouse.” G.L. ch. 190B, § 2-102. In other words, because you and your siblings are not descendants of the surviving spouse, the spouse will only collect the first $100,000, plus ½ of the balance. Here, because you are not a descendant of the surviving spouse, you are not a natural object of the bounty of the surviving spouse, and therefore could eventually be disinherited if the surviving spouse chooses to favor their children by another partner. As always, we recommend prior planning to avoid having to follow statutory provisions related to inheritance, especially when it means losing out on $100,000 off the top.