Thursday, November 13, 2014
In general, the concept of testamentary freedom makes a person free to dispose of their property as they see fit when they die. However some decisions may be held to be against public policy and that freedom may be limited. Here are some of the key controversial estate planning decisions that may garner limitations and ignite an expensive legal battle:
- Disinheriting a Spouse. The ability of a person to leave their spouse out of a will and leave them with nothing has been limited by states through spousal elections, which guarantee that a surviving spouse will get some portion of the estate.
- Encouraging Divorce. The threat of disinheritance in a will unless a person gets divorced is unlikely to be upheld, as provisions that encourage divorce or are viewed as anti-marriage are disfavored by states.
- Limiting Marriage Choice. Will provisions that require marriage to a person of a set religion create a struggle between freedom of religion and testamentary freedom, and even though a similar provision has been upheld in Illinois, it creates public policy concerns.
See Ian Holzhauer, Controversial Estate Plans: Can You Legally Encourage Divorce? Disinherit a Spouse? Make Religious Restrictions?, Tailored Estate Planning, Nov. 12, 2014.