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.
With each person's will being unique to their own wishes, there are some pretty interesting requests that end up in writing. But some of these requests are a little too controversial to hold up in court.
Some people attempt to control the behavior of others through the provisions in their wills and others seek to punish people for slights or out of spite. Most of the time, however, courts will enforce these provisions.
On the other hand, some things are so controversial that a court might not enforce them.
Recently, the Wills, Trusts & Estates Prof Blog published a list of things courts generally do not allow in an article titled "Controversial Will Provisions."
The list includes:
- Disinheriting a Spouse - The law does not allow you to disinherit a current spouse. Instead it provides for a spousal elective share. That means that a spouse can elect to either take what was left to him or her in the will or they can take a fixed percentage of the assets in the estate.
- Encouraging Divorce - Inheritances cannot be conditioned on someone getting a divorce. Courts view any such provisions as anti-marriage and against public policy.
- Limiting Marriage Choice - Although some courts have allowed it, generally you cannot attempt to force another person to only marry other people of a particular religion.
If you have questions about anything that you can or cannot do with your will, be sure to talk to an experienced estate planning attorney about them.