American Law Incubates New Concerns For Prospective Heirs

To speak with an experienced probate law attorney, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

Some parents choose to disinherit their children. The actor Mickey Rooney, who died in 2014, had eight offspring over the course of eight marriages and expressly declined to provide even a token bequest for any of them. He disinherited them all, Rooney explained, because every one of them was better off than he. Instead, Rooney left his estate--only a mite by the time of his death--to a stepson who had served as Rooney's caretaker toward the end of his life.

Rooney was free to follow this course. Whereas most countries offer children a mandatory share of their parents' estates (known as legitime under civil law), American law does not. American parents have free rein to disinherit any or all of their children.

But compare the estate plan of another departed celebrity. Vickie Lynn Marshall, also known by her pseudonym, Anna Nicole Smith, died in 2007. Her will, executed in 2001, left her entire estate to her son, Daniel. He died in 2006 at the age of twenty, predeceasing his mother by five months. Three days before Daniel's premature death, Marshall gave birth to a second child, a daughter whom she named Dannielynn. Marshall never amended her will to account for either the death of her son or the birth of her daughter. To further complicate matters, Marshall's will stated that "I have intentionally omitted to provide for . . . other heirs, including future spouses and children . . . now living and those hereafter born or adopted." Did Marshall truly wish to disinherit her daughter, just an infant at the time of Marshall's death, along with every other one of her heirs--which would have caused her considerable estate to escheat to the state of California?

American lawmakers grow more protective of children when circumstances indicate that a parent failed to include them in a will inadvertently. Throughout the United States, children enjoy some sort of legal safeguard against an estate plan that omits them contrary to the inferred wishes of a parent. The form of this safeguard--creating an implied right of filial inheritance--varies from state to state.

Is any such rule justified as a matter of public policy? Assuming so, how should lawmakers shape the rule to accomplish its purpose? How can they structure the law so that it gives effect to testators' intentional acts of disinheritance on the one hand, while shielding children from accidental disinheritance on the other?

A raft of scholarship has accumulated over the years on the virtues and vices of granting children mandatory rights of inheritance. By comparison, hardly any modern work has devoted even passing attention to fashioning children's implied rights of inheritance. Yet, the second problem--addressing as it does actual, pervasive rules--is of greater practical significance and raises policy issues that are no less fundamental to the law of wills.

If you have any questions or would like to speak to a probate law attorney about a will, trust, or estate matter, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

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Source: Adam J. Hirsch, Airbrushed Heirs: The Problem of Children Omitted From Wills, 50 Real Prop. Tr. & Est. L.J. 175 (Fall 2015)