I Have a Secret Relationship. How Do I Include Them in My Estate Plan?

Patricia Malley of Burns & Levinson

Typically, when couples put together an estate plan, they do so jointly with a single attorney representing both spouses. It is more cost-efficient, allows for open discussion with all parties, and ensures there are no conflicts within the estate plan itself. The downside is that the attorney represents both spouses and cannot keep one spouse’s secrets from the other. In certain circumstances, it may make sense to have separate estate planning attorneys, such as in blending family situations with conflicting interests or in the event of a “secret relationship.”

There are many examples of secret relationships. You could have a significant other from the past that you continue to provide for, unbeknownst to your partner you are married to, or another lover, or a child from a previous relationship that you never disclosed. In situations such as these, if you intend to keep the relationship a secret during your lifetime, then you will need to hire your own estate planning attorney so that your conversations remain confidential between you and your lawyer.

Of course, if you provide for a “secret” beneficiary in your documents, your surviving spouse, children, and other beneficiaries named in your documents will likely learn of this well-kept secret once you die. How do you ensure that your intentions are clear and will be followed after your death?

First, it is important to disclose everything to your estate planning attorney. Clearly expressing your intentions regarding your “secret” beneficiary will enable the attorney to draft and execute documents that fulfill your wishes after you die. The attorney may also be called upon in the event of litigation.

Second, if you believe that your estate plan may cause issues within the family (regardless of whether you have a “secret” beneficiary), you should name an independent fiduciary who has no stake in the game. This will allow them to act in accordance with the terms of the estate planning documents without personal bias. It may also alleviate some of the emotional stress that a loved one would feel if they were responsible for administering your estate plan. Think about it–would you really want to subject your widow to having to communicate with a newly discovered love child who is supposed to receive an outright distribution of cash?

Third, consider using an in terrorem or “no contest” provision in your documents. This clause is intended to discourage beneficiaries from challenging the will (or trust) because if they do, they will not receive anything to which they would otherwise be entitled. However, this clause is only effective if someone is a beneficiary receiving something under the will (or trust) itself. If the individual you wish to exclude is not receiving anything, they are not motivated to not challenge the estate plan. Thus, if you are concerned that someone may challenge or cause difficulty when administering an estate, we encourage leaving an amount sufficient to appease the individual you intend to exclude. This amount will vary based on the value of your assets.

Fourth, if you want to keep your “secret” relationship out of the public eye and still provide for the beneficiary at death, any disposition to this individual should be through a trust, not a will. On death, a will is filed with the Probate Court, becoming public record and accessible by anyone. This may not concern you, but your loved ones will likely appreciate keeping that part of your (and their) lives private.

Now, what happens if you do not want to benefit your “secret” beneficiary on your death? Perhaps you believe you supported them sufficiently during your lifetime, and instead you want other family members to benefit from your assets after you pass. Keep in mind that this individual could emerge from the woodwork and disclose your relationship to those you kept it from during your lifetime. Thus, the best way to plan for a “secret” relationship is to fully disclose it prior to death.

Dealing with the death of a loved one is extremely difficult. Discovering that a family member had a “secret” relationship can be an emotional toll you may not want to put family members through. It is not easy to plan for “secret” beneficiaries, and great care should be given when working with your estate planning attorney.

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