Storming the inheritance Bastille
October 1, 2022 | View PDF
I was watching a Korean comedy series recently online, called “Extraordinary Attorney Woo”. It is about a brilliant but significantly autistic woman who becomes a lawyer. If you don’t mind reading subtitles (or alternatively, if you speak Korean) I can highly recommend it.
One episode involves an inheritance dispute. After the father dies, the two older brothers convince the youngest brother that under Korean law, the oldest brother get the largest percentage of the estate, the second brother gets a smaller percentage, and the youngest brother gets an even smaller percentage. The gullible youngest brother signs off on paperwork based on this misrepresentation, but of course our plucky heroine finds him a way out of the bad deal.
But interestingly, up until sometime in the 1990s, that was in fact Korean law. It wasn’t the law when this episode was written, but it had been in years past. The oldest brother did get a larger share than the next, and the shares kept shrinking on down the line. The daughters typically got nothing at all.
Watching this, and finding out about the not-so-distant past of Korean law in the process, I was shaking my head in amusement. Sure, my distant ancestors may have labored under similarly unfair inheritance laws, but that was back in the dark ages. The ancien regime, I mused, had long since passed in the West.
And then the Queen died.
Under British law – at least, the laws that apply to the nobility – Prince Charles (oops, sorry, it’s King Charles III now) inherits the royal title, the right to influence the government, and control of billions of dollars in assets. And this happens even though he has two brothers, and a sister who is older than he is. They don’t necessarily get anything. Poor Harry’s wife may have to work to support him.
In fairness, the whole ‘royal family thing’ is mainly a bit of fun, put on for the benefit of the British tourist industry. Anywhere in the U.S. today, and for that matter in most developed countries, children are treated equally, regardless of birth order or gender. That is, they’re going to be treated equally unless the parent decides not to.
For the most part, if you have a will or a living trust, you can disinherit any children you want to disinherit. You don’t have to leave them a dollar, or even a dime. All you have to do is clearly say so, in writing, in the right kind of legal document.
There are very few limitations on this. You cannot completely disinherit a spouse, unless he or she agrees to it. You can partially, but not completely, disinherit a minor or dependent child. But you can fully disinherit an adult child.
(Caveat: if your estate goes through probate, and there is no surviving spouse, your children are entitled to split the first $10,000, no matter what. But that is a relatively modest sum anyway, and even that is easily avoided by not going through probate).
But what if you don’t leave a will or trust? At that point the intestacy laws kick in. Children will still be treated equally, but other than that it can get kind of weird. The intestacy laws make some broad assumptions about what someone would probably want, based on just a few facts. It matters whether there is a surviving spouse, whether you have children, whether either of your parents are still alive, and whether you or your spouse have any children from prior relationships. Based on that, the judge will get out a meat cleaver and chop up the estate. What you might have really wanted, doesn’t matter at all. Even if there is clear evidence of what you wanted, it doesn’t matter in probate.
Sometimes the intestacy laws accurately guess at what the deceased would have wanted. Many times they don’t.
Sure, the modern inheritance laws are more fair and equitable than the old laws of primogeniture. But they are still far from perfect. Which is one more reason why you need to make up your mind, get it in writing, and make sure it is done legally.
Or your castle may not end up in the hands of the right heirs.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Egalite, mes amis, egalite!