This column first appeared in the San Antonio Express News on November 20, 2015.
Dear Mr. Premack: My husband and I always liked our nephew. We have no children of our own, and have our nephew inheriting in our current Estate Plan. However, he just married a woman neither of us likes. Is it legal to update our estate plan to say our nephew can inherit only if he divorces this woman and never sees her again? PD
You raise some interesting questions. The fact is that your assets belong to you, and you have legal authority to decide to whom they will pass upon your demise. On the other hand, your nephew has a clear legal right to marry whomever he chooses. As a matter of law and public policy, the right to marry is strongly defended.
You intend to force your nephew to an election: divorce or get no inheritance. It is certainly legal to place conditions on an inheritance. For instance, if your nephew was still a minor you can state that any inheritance must be held in trust until he reaches a certain age. But can you require him to give up a right that is protected by law and is favored in public policy (the right to marry the person of his choice)?
By analogy, Texas law allows one spouse to put another to an election to waive certain property rights. Spouses own their community property 50-50, and when one spouse dies that person should only control what happens to the 50% that belonged to that person. But it is legal in a Will to force the surviving spouse to place the other half into a trust for the spouse’s benefit – even though forcing that election causes the spouse to sacrifice property rights that are legal and favored in public policy.
The person who is being put to the election can always decline to sacrifice their legal right. If your Will says, “I leave all of my assets to my nephew John on condition that he is not married to Julie”, then John can decide if Julie is more important than the money (and let it pass to someone else you identified in your Will). Or he can get a divorce and take the money.
But isn’t that an awful way to treat your nephew? You like him, but do not like his wife. Perhaps there is a solution to this issue that will not make him resent and hate you for the rest of his life.
Consider leaving your assets to your nephew in Trust. You can select an independent Trustee (perhaps another family member or a bank). You leave legal title to your assets to that Trust, with specific rules as to how and when the money can be used by your nephew. Perhaps you state that he may have the annual income from the Trust, but will have no right to control or spend the principal (the assets you owned at the time you died).
Perhaps you state that he can receive a certain set amount each year, but only for his personal benefit. You can specify that none of the assets will be used directly to benefit his wife (although whenever he gets extra money from the Trust, other money he already has may be freed to be used in ways that will benefit his wife).
Perhaps you even state that all these restrictions will be lifted should he ever finalize a divorce from her. That way, during the pendency of the divorce, the assets you put into the Trust cannot be claimed by her as part of the divorce settlement. You are not forcing him to divorce, but are saying that if the marriage ever does end then your restrictions will likewise end.
This issue should be handled with delicacy and sensitivity. You need to consult with an experienced estate planning attorney to explore all your options before you do something draconian that may ruin your current relationship with your nephew.
Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington, and handles estate planning for all ages, probate law and business entity formation issues. Submit estate, probate, elder law and LLC questions at www.texasestateandprobate.com or go there to view the archive of past legal columns.