What to do with 23 and me?
Recent years have seen the rise in ancestry services such as Ancestry.com and 23 and Me. After performing a simple DNA swab, these services provide the subscriber with hereditary and genealogical information that can unlock family history, medical information, and perhaps even long-lost relatives. While these services provide substantial value for our personal lives, they may be problematic in the world of estate planning.
To illustrate, consider the following hypothetical. A man donates to a fertility clinic when he is 20 years old. Many years later, the man is happily married with three adult children. The man then creates a will that reads in part as follows: “I hereby leave my personal savings account, valued at $1,000,000, to my biological children to be divided equally.” This language creates a class gift to a particular class of people, his children, as opposed to naming specific individuals to benefit. While the man’s three children are included in this class gift, as was intended, so too is a fourth biological child resulting from the man’s fertility clinic donation years prior, whom the man never knew existed. Genetic information services can have both intended and unintended consequences, as the three children will find out if the fourth child identifies his father through an ancestry service and later seeks a distribution from the man’s estate under the class gift in the will.
The above hypothetical is not the only scenario where this problem may arise. Numerous other situations can jeopardize an estate plan with genealogical services, such as children given up for adoption or children from a spouse’s prior marriage. Regardless of the exact circumstance, in the age of commercial DNA services, a specific estate plan is essential to anticipate these kinds of scenarios.
So, what can be done to specify an estate plan and ensure that only the desired beneficiaries receive the proceeds of an estate? In the case of class gifts, specific terminology must be added to ensure the desired recipients are the only recipients. Class gifts are useful because they can leave beneficiaries open-ended to anticipate heirs that may not yet be living, such as grandchildren or future children. In the above example, had the man added more specific language to his will specifying the beneficiaries to be his and his wife’s biological children, or perhaps his biological children resulting from his marriage to his wife, then the class would be limited to only the desired recipients, and the fourth child would have no basis for a distribution from the mans’ estate.
In addition to or in place of class gifts, one may include a general or specific power of appointment. A general power of appointment allows a designated individual (power holder) to designate recipients for property of the estate with very few restrictions. A special power of appointment, also called a limited power of appointment, allows the power holder to designate recipients for property of the estate in accordance with the terms laid out in the will.
In the case of discovering a long-lost child or other relative that may have a claim on your estate, it is wise to recognize the existence of this relative in the will and the testator’s specific intention to not include them in the estate plan. Of course, the opposite is true if a testator wishes to include this newfound relative in the estate plan, who can be included with similar specific language. Regardless of the precise feature used to select beneficiaries, it is always a good idea to make a testamentary instrument like a will as specific as possible to avoid ambiguity, confusion, and unintended beneficiaries.
Chepenik Trushin LLP is here to help you and your family with all your estate planning needs. Call us now, Bart Chepenik, 305-613-3548 or Brad Trushin, 305-981-8889.