Peacock Tales • Summer 2013

What is Fair?

By Rick Amrhein

As an Estate Planning attorney, I am occasionally required to "referee" a discussion, sometimes heated, as to the meaning of "what is fair?"

  1. When mom and dad have two children, and one child has two children and the other just a single child, and mom and dad what to provide for the grandchildren is it fair to: (a) divided the gift in to two pots with the grandchildren getting one-fourth, one-fourth and one-half; or (b) divided the gift into thirds so each grandchild gets an equal share?
  2. If there is a second marriage of long duration with the wife having two children to the first marriage and the husband having no children but one nephew, is it fair to divide joint assets on the second spouse's death: (a) one-third to each of wife's children and to the husband's nephew; or (b) one-half to each of wife's children since the husband's nephew is not a direct descendent; or one-half to the nephew and one-quarter to the two sons?
  3. When a widow has five children is it fair to divide her estate: (a) into fifths without regard to each child's situation in life; or (b) favor those children more in need; or (c) favor those children who paid more attention to their mother?
  4. And then there is the question "what is right" when naming an Executor or Executrix. Should the parent name: (a) the eldest child; (b) the child who is an accountant or attorney, or (c) the youngest child who has looked after the parents for some time because he or she was the last to leave the family home?

There is no "right" answer to any of the above questions. Every client, every family situation, differs. The best we can do is to lead the discussion, hopefully in a positive tone. As to question number 2, if the couple cannot amicably agree on a division, we might have to refer each of them to separate attorneys to do their wills.

And oh by the way, as to the couple in question number 2, when asked what they thought was fair as to the first questions they disagreed on the answer.

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