Parents do not have to treat children equally in estate planning documents (Wills and Trusts). Under California Trust and Estate law, creators of a Will or Trust may leave their assets to whoever they wish, including non-family members. There is no requirement that parents provide equal treatment to their children under a Trust or Will.
When A Estate is Divided Unequally
There are times when a parent may choose to leave a larger share to one child. This typically happens when one child has gone above and beyond in caring for the parents at home while the other children do not help. The parent may amend the Trust or Will giving the caregiving child a larger share of the estate. When the parent dies, the other siblings may have a rude awakening when they discover, usually for the first time, that they are not getting an equal share. Maybe the unequal share is what the parent wanted, maybe not, but either way the siblings with the lower shares are likely to file a lawsuit to challenge the unequal distribution—asserting a claim such as undue influence. This is especially true if some of the children are disinherited completely because they have nothing to lose by challenging the validity of the Trust or Will.
What if The Estate Was Divided Unfairly?
On the other hand, if one child takes care of a parent but the parent does not change the Trust or Will to award the caregiving sibling a larger share, the caregiving sibling may feel they are entitled to compensation for caring for the parent. The only way a caregiving sibling may be able to achieve this result would be to assert a claim in court and prove there was a contractual relationship to provide care in exchange for a larger share of the estate. These cases are difficult to prove and could trigger a Trust’s no-contest clause that could disinherit the child completely.
The bottom line is that parents can and do leave unequal shares to their children, at times. There is a right way to create unequal shares and a wrong way. Working closely with a competent estate planning lawyer can make a big difference in determining if your plan will stand firm or be ripped to shreds after you’re gone.
