You want everyone in your family to have what they need, including yourself. You also want peace in your family. Sometimes these two goals collide. Making sure everyone has what they need may not satisfy everyone’s definition of fairness.
Case in point. A parent I know bought his son with autism a laptop computer as an assistive device. His daughter complained. Why did her brother get a laptop and she didn’t? The parent asked her daughter if she would also like to go to the same number of doctor and therapy appointments as her brother had to attend. That put an end to her grievance, but who knows if it swayed the daughter’s sense of fairness or extinguished any resentment she felt.
A laptop computer is one thing. Dividing your estate is an entirely different ballgame. Close, peaceful sibling relationships are torn apart over the division of assets left by their parents. People go to war with each other over estates, big and small. Close family relationships have been seriously wounded and sometimes completely disintegrated over the division of a parent’s legacy.
Dividing your estate into equal parts between your children might be the easiest thing to do in the name of fairness. Splitting the pie into three equal pieces when you have three children makes sense and seems fair…at least at face value. Even if one of your three kids disagrees, believing he deserves more than the others (“I took care of mom all these years and you two did nothing!!”), he might hesitate before he picks a fight.
But what if one of child has a disability? What if your son is not able to financially support himself and requires other supports because of his disability? Is it fair for him to receive a larger share of the pie, because his needs are arguably greater than his siblings while his ability to navigate life independently is compromised?
If your estate is large, an equal share of the pie could be enough. Most parents are not in that position. Unless you have amassed a significant amount of wealth, splitting your estate into equal parts may not be enough to cover all the key expenses for your son or daughter with special needs.
So how much is enough? It is a question all parents have. No, you can’t calculate an exact figure, but you can arrive at number you feel is reasonable to do the job. Granted, it is not a straight-forward calculation. There are a number of factors to consider and you may want to retain a professional to help you with this analysis, but it can be done. Parents who understand how much they need to leave behind for their child with special needs are in a position to make much more informed decisions.
But this is not just a mathematical exercise. We don’t make financial decisions simply based on calculations. Our daily spending decisions, major purchases (home, car, etc.), activities for our kids, charitable donations, vacations, retirement savings and many other decisions are primarily driven by personal values, desires, a sense of responsibility and other emotional factors, including fear. Budgets, estimates and projections may play a part in our decisions, but I would argue they are not the primary drivers.
Even in families where one child’s needs are clearly greater than the needs of the others, emotions, personalities, values, family dynamics and expectations influence estate planning decisions. Siblings (and parents for that matter) do not automatically accept an uneven division of assets as fair, even if a sister can’t compete in the workforce or live independently like they can. Over the years, your daughter may have received a disproportionate amount of your time, energy and, yes, financial resources than your other children and now they will receive less than your daughter from your estate? Some siblings are okay with that, but not all and parents know it.
As a parent, you may feel badly because your other children have gotten the short end of the stick. Maybe your idea of fairness has always been that everyone gets the same amount, but living up to this definition has been impossible because the needs of one child has demanded more from you. Leaving a larger legacy for one child could make you feel you are short changing your other children.
So how do you navigate your wish to divide your estate equally versus your responsibility to make sure you leave behind sufficient resources for your child who can’t provide for themselves? There is no easy answer. No surprise there. But I do believe there are ways to address these issues in a thoughtful manner.
Before you do anything, run some numbers. Estimate how much your child with a disability will need. I know I am repeating myself, but you need to have an estimate to make informed decisions. In fact, you should also estimate how much is needed for other major priorities, including your own retirement.
Consider strategies to increase the size of your estate. There are estate planning strategies that can help with this. Life insurance is an often used strategy. There are other strategies as well, but they all come with a cost. Increasing the size of your estate can ease issues, but it may not be enough to solve everything.
If an equal share of your estate will not be enough for your child with special needs, here are some questions you can think about. We don’t have clear answers, but we do have questions that should help you make thoughtful decisions.
How do your children view fairness? Have you spoken to them about it? Do you really know what they think about the matter? Many parents do not talk to their children about their estate planning. Money may be a private issue and raising the topic with your children could feel like starting a fire you would prefer to avoid. But having the conversation gives you an opportunity to deal with it. Sure it may generate tension in the family, but the discussion should provide you with information you might not otherwise get. Your children may very well raise some valid issues and perspectives which could influence your planning decisions for the better.
If conflict is inevitable, we suggest you would want to be there to influence it. If you leave the conflict after you have died, you have no way of responding to their objections, explaining the reasons that drove your decisions or answer your children`s questions. Children who clearly understand your reasons for structuring your estate and dividing your assets between them are more likely to accept your position. Give them the forum to ask questions and provide them with thoughtful answers.
If the topic feels explosive, there are professional mediators who specialize in helping families work through these issues. Yes, mediators come with a cost, but an experienced third party can be of tremendous benefit. If you find it tough to justify the cost, think about the cost a legal battle between your children could easily rack up. Estate litigation is far more expensive than the mediator. Legal battles over an estate happens much more often than you would think – there is a reason why many estate litigators continue to earn a healthy income.
How would their lives be affected if you didn’t leave behind enough money for their sibling with the disability? Would they have to take on the financial responsibility if the money in a trust ran out? How would that affect not only them, but also their own family? What could it do to their marriages? How would it impact their ability to parent their own children? Splitting your estate equally between all your children can blow back on the ones without special needs.
You may think it is reasonable to expect they fill the financial gap since you left them a fair portion of your estate, but they might not agree. Even if they say they will be there for their sibling, that is not a guarantee. People change, they face unexpected challenges they never could have imagined or they may not even be alive when the time comes for them to step up for their brother or sister.
Your other children may not even be in a position to respond to their sibling’s financial needs when the time comes, if they have overextended themselves. You may have left them a significant amount of money, but that doesn’t stop them from spending it all. They may be more reckless with money than you thought. They may end up unemployed for a long period of time and live off of the money you left them. Or maybe they decide to invest in a business in the hopes of increased wealth that may or may not come.
Even if your child says he will be there for his sibling, that doesn’t mean their spouse will feel the same way. How will your daughter’s current or future husband feel about the added responsibility? He may not have the inclination to take on another dependent. He may have a different vision for his family’s future. What if they get divorced? The money you left your daughter could be divided between them, leaving your daughter with half.
You might feel like you are doing your children a favour, splitting your assets equally. Or you might feel it is the best way to keep the peace. Yet, they will be the ones left behind to pick up the slack, if its needed. They may have to take on responsibilities that you don’t want to saddle them with and they may or may not want to assume.
We have seen adult children, especially ones with children of their own, tell their parents they would rather see a disproportionate amount of the estate go to their brother or sister with special needs because they recognize how complicated and difficult things could become. They want to help their sibling, but they want things set up for success. Would they really want to be in a position where they must start allocating some of their own resources to support a sibling? Or would they rather help manage assets in a formal trust that have been specifically set aside for their sibling to cover all their financial needs?
If you are still inclined to split your estate in such a way that does not reflect one child’s need for more, ask yourself why. What is driving your decision? Are you satisfied with your rationale? There may legitimate reasons for your decision. If so, fine. If you are not clear on why you have made the decisions you have made, take the time to identify those reasons. Shouldn’t you at least be able to explain your rationale to a third party? You might not choose to share the rationale, but you should be able to clearly articulate it. If you can’t articulate your reasons, do you really understand what they are? And if you don’t really understand what they are, how will anyone else in your family after you are gone?
We all have competing priorities, fighting for the same resources. There is only so much time in a day and most have less money than they would like. The financial needs your child with a disability has are not your only priorities; they are not the only factors driving your financial decisions. Determining how you divide the legacy you leave behind is a complex and personal matter. Spend the time discussing what is best for you and your family. Consider discussing the challenges with your family. And seek professional guidance who will not tell you what to do, but rather ask you the questions that help you identify your priorities and provide you with strategies that align with those priorities.