Although most couples make similar wills that leave their estate to their children and other loved ones, some may have reasons why they prefer to distribute their assets differently. For instance, people who marry later in life might have children from previous marriages. In those circumstances, they may ask their estate planning attorneys to create contracts that ensure the bulk of their estate goes to their own children, as opposed to letting the surviving spouse leaving everything to his or her children instead.
These cases can get messy. Once a person dies and leaves his or her estate to a spouse, that surviving spouse is free to dispose of everything freely without concern for the deceased spouse’s wishes.
Markey v. Estate of Markey
Recently, the Indiana Supreme Court heard a case involving John Markey and his second wife, Frances. Each had adult children from previous relationships, so they executed a contract stating that after the last of them dies, the net of the estate would be divided equally between John’s son, David, and Frances’s granddaughter. The contract said that once executed, the will was not to be revoked or amended to change these provisions.
Frances breached the contract, leaving her entire estate to her children, to the exclusion of John’s children. Nine months after she died, however, David filed suit to enforce the contract. The trial court held that an action to enforce such a contract is not a probate claim that can be brought against an estate. However, the Indiana Supreme Court disagreed, finding that such actions can indeed be brought as claims against a probate estate. Nevertheless, the matter was returned to the lower court to decide the issue of whether David brought the claim in time.
While at first glance, creating a contract not to revoke a will may seem sound, especially if a couple gets along well, it has huge drawbacks. As with any contract, one should consider the challenges to enforcement. It is impossible for a dead person to enforce a contract. Therefore, the decedent is simply placing that burden on his or her heirs.
Consider a Trust
Since a will only determines what happens at death, it is very difficult to dictate what others will do once an estate has been distributed. On the other hand, a trust has the added benefit of allowing some control long after death. So, had the Markeys created a straightforward marital trust, they could have set everything up precisely as they agreed, given provisions for violating the terms of the trust, and even placed the responsibility of enforcement with a trust company or other third party, so as to avoid feuding among the heirs. This is yet another reason to consult a skilled estate-planning attorney in such delicate situations.