Sunday, November 27, 2011

Can I leave money to my daughter, only if she leaves her husband?

In the American Legal system, the right to pass on one’s property, to family in particular, has been in existence since the feudal times. Testamentary freedom is a benchmark of American tradition which allows testators to pass on land at their deaths to individuals of their choosing. The law is broad in scope as is evident from the allowance of individuals to disinherit minor children “for any reason or no reason” as long as it is not against public policy. Conditions on a provision in a will are usually allowed as long as they are “reasonably definite” and not contrary to public policy. However, the mere fact that freedom of testation is important does not mean that it is unlimited and absolute.  So what does it mean?

In general, provisions in your will that are made directly to induce your kids to separate from their spouse without just cause and in a lawful manner are against public policy and void under the law. However, some of these gifts have been upheld when they are conditioned on a lawful dissolution (meaning they were going to get a divorce whether or not an inheritance depended on it) or where it is shown that your intent was to provide for the support of your daughter if her husband died or divorced her.  The true test is that the provision can’t be an inducement to get a divorce, because that is contrary to public policy, but if you put such a provision in your will because you anticipate that the death of your daughter’s husband or a divorce would end the husband’s support of her, then you are justified in providing other support. This is a complex issue that certainly requires individual counseling with an attorney to ensure your goals are met.