It’s very common for wills to grant property to a particular person, then add that if that particular person doesn’t survive the testator (person who makes a will), the property goes to that person’s “descendants.” “Descendants” (or sometimes “issue”) is an extremely important word in many wills, but what does it mean? The short answer is, it means whatever your will says it means, so you need to make sure the definition in your will matches your intentions.
Who Am I Excluding From My Will If I Exclude “Illegitimate” Descendants?
Particularly in older wills, it’s common for the definition of family terms like “descendants” and “issue” to specifically exclude “illegitimate” children. For example, one option in the Minnesota CLE Drafting Wills and Trust Agreements (6th Ed.) suggests:
“Descendants” means all persons who are lineally descended from the person whose descendants are referred to (including legally adopted lineal descendants) but excludes illegitimate descendants and their descendants. For the purposes of this Will, an illegitimate descendant is a person (other than an adopted descendant) whose biological parents were not married at the time of such person’sconception or anytime after such conception and prior to the Settlor’s death.
This definition meets the needs of many families, but that’s not the right question to ask when making your will. You want a will that meets the needs of your family.
First, the term “legitimacy” may not accurately reflect who you consider a part of your extended family and intend to remember in your will. According to the National Center for Health Statistics, 41% of all U.S. births in 2009 occurred outside of marriage, up from 11% in 1970. Changing social trends in the acceptance of non-marital relationships also mean that more of these babies are being accepted as “part of the family” by grandparents, aunts and uncles, and other extended family members.
Even more dramatically, both the law and society in general are shying away from treating non-marital children differently from marital children. Note that the above definition of “descendants” wouldn’t disinherit a descendant that had a non-marital relationship, which the testator may disapprove. It would disinherit the child born from that relationship, who did nothing to “deserve” disinheritance. If that is not your intent, you may want to consider a definition of “descendants” that doesn’t use a term like “legitimate” at all.
Second, if your will has a clause excluding “illegitimate” descendants from inheriting, does your will define what “illegitimate” means, as the example above does? Some wills—particularly older ones—may not, assuming that everyone would understand and agree on what “illegitimate” means.
That’s not the case anymore. The words “legitimate” and “illegitimate” are no longer used to describe children in the Minnesota Statutes.* Some older definitions of the word “legitimate” even exclude children whose parents marry after the child is born.
Third, even if your will defines “illegitimate” the way the above example does, children resulting from some modern family structures don’t always fall neatly into either the “legitimate” or “illegitimate” category. For example, what if a child only ever had one “parent” in the legal sense, such as when a single woman has a child using a sperm donor? What about a child born to a same-sex couple who are married under the laws of one state, but not under the laws of the state where the testator lives, or maybe even where the couple lives?
Or what about a situation like that in Astrue v. Capato, a recent Supreme Court case involving a widow who, with his permission, used her late husband’s frozen sperm to have children born two years after his death? Technically, those children are “illegitimate” under the example definition above. The widow wasn’t married at the time of the children’s conception or afterwards, because you can’t be married to a dead person. Would the late husband’s parents really intend to disinherit their biological grandchildren in a situation like that?
How Should I Handle So Many Different “What If’s” in My Will?
If all of these questions feel too overwhelming, you may want to consider having broader definitions in some places in your will than in others. For example, you may know you and your spouse only have “legitimate,” marital children, but you don’t want to accidentally disinherit a great-grandchild just because, years from now, one of your grandchildren might have a child in one of these less-traditional ways. In that case, you could ask your attorney to limit the definition of “children” in your will, but have a broad definition for descendants in later generations.
The truth is, you can’t expect to foresee exactly how your extended family will grow and change over time. That’s one of the reasons why it’s important for you to talk to your estate planner on a regular basis. Explain your definition of “family” and what your intentions are in limiting who is included in your will. And if you already know that someone in your family has a non-traditional family of their own, tell your estate planner. Part of an estate planning attorney’s job is to come up with a will that best fits your desires and your family, no matter how traditional or unique your family’s structure may be.
*The preferred term for children born outside of wedlock—and the one Minnesota Statutes now uses—is “non-marital children.”
Kaitlin M. Pals is a business and estate planning attorney with Gislason & Hunter LLP (www.gislason.com), who also practices in the family law areas of assisted reproductive technology, adoption, and guardianships. Kaitlin can be reached at email@example.com or (507) 354-3111. This information is general in nature and should not be construed as tax or legal advice.