CONTROLLING THE ESTATE FROM THE GRAVE
CONTROLLING THE ESTATE FROM THE GRAVE
Q. How effective are trusts that make bequests conditioned upon the children doing or refraining from doing certain acts?
A. Parents often attempt to control the conduct of their children by leaving them their estate over a period of years if they do certain things. Most courts uphold conditional bequests as long as they do not violate public policy. Let’s look at some common areas.
RELIGION: Some parents will try to force their child to have the same beliefs as they do or to belong to the same church, etc. The courts have varied on this point from state to state, and it is often a matter of the degree of the request. Conditions which tend to interfere with one’s freedom of religion may be struck down as volative of public policy.
MARRIAGE: A gift conditioned upon the recipient remarrying is generally upheld; however, a conditional bequest which would force a beneficiary to remain in an unhappy marriage has been rejected by most courts as a violation of public policy.
DIVORCE: A parent could not require a divorce before his child could receive his inheritance. Most courts would construe that condition as a violation of public policy. A gift which does not induce the divorce but provides for the support of a divorced person is generally acceptable.
PARENTAL CONTROL: Conditions that would require a child to live away from his or her parent before receiving an inheritance are not enforceable as it is clearly against public policy.
BEHAVIOR: The most common conditions are that a child refrain from drug, alcohol, and cigarette use, or maintain a certain grade average in school. This type of behavior can be a condition of a person receiving a bequest from a will or trust. Attorneys have to be extremely careful in drafting these types of clauses, as the most common problem of enforcing them is that they are often too vague.
Conditional bequests can be a way to control behavior from the grave. Each case must be analyzed separately to insure that it is not against public policy, and clauses must be carefully drafted so as not to be too vague.