Disinheriting A Spouse: Understanding The Risks

The most interesting estate disputes to observe from afar are those in which those executing a will (called “testators” in legal parlance) decide upon a distribution of assets that is different from what would typically be intended. One of the greatest rights that you as an individual have over the real estate and personal property (including cash and investments) that you acquire throughout your life is the ability to dispose it as you see fit, subject only to your conscience, your state’s spousal support, elective share, and homestead laws (if any), and the prohibitions of your state court due to public policy grounds.

I recently the 1956 New York Court of Appeals case of Brown v. Du Frey, in which Florence Brown executed a will governing about $10,000 in her assets (worth around $100,000 in 2018 dollars) that not only disinherited her spouse Harold in favor of giving funds to Concord Baptist Church, but she also included this insult as part of her disinheritance clause in the will:

“I am mindful of the fact that I have made no provision for John H. Brown, my husband. I do so intentionally because of the fact that during my life time he abandoned me, made no provision for my support, treated me with complete indifference and did not display any affection or regard for me…” (emphasis added).

The New York Amsterdam News ran an article titled: “Husband Deserted Her; Woman Bequeaths Fortune to Church.”

The husband, inflamed at being excluded from the will, filed a libel suit against his late wife’s estate, claiming that her statements were legally defamatory and he provided statements and receipts for her support and brought other live witness testimony from individuals claiming he did show her affection at various points during their marriage. This libel claim resulted in $4,500 in damages against the estate of Florence Brown, which, since the debts and obligations of an estate must be made before any distributions to beneficiaries, resulted in the husband receiving $4,500 (about $40,000-$50,000 in today’s dollars).

In a modern-day will, this could have been avoided by simply including a clause that stated the exclusion of the spouse was intentional with no additional language added.

People sometimes think that, because they will be dead, it is an opportunity to spout off and say whatever. While that is true, it can lead to unanticipated consequences. When you die, your estate replaces you as the entity responsible for the aftermath of your behavior. If you include gratuitous language in an instrument, it can be treated as a condition or, in the case of Florence Brown, as a tort.

In 1950s New York, the standard for libel was this: A false charge that “necessarily causes great humiliation and mental anguish. Such a charge necessarily tends to expose one to public contempt, to induce an unsavory opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society. Such a charge tends to cause one to be shunned, avoided or deprived of the friendly association of a considerable number of respectable members of the community. Therefore, such a charge is libelous.”

With some variation, this closely tracks the laws that exist in most U.S. states today. And no state provides a loosened standard for proving libel merely because the declarant accused of defamation is dead.

In engineering circles, there is always a focus on limiting the number of vulnerability. A Toyota engineer, speaking candidly, may exhibit nostalgia about the Toyota vehicles of a generation ago because there were only five things that could go wrong with the car compared to the modern-day introduction of vehicle electronics that now create dozens of error possibilities that may effect the functioning of your vehicle.

This same principle applies to the law when trying to do something that is legally permitted but socially and/or otherwise disfavored. You do what you need to do—disinherit a spouse or child by saying that the absence of any devise or bequest is intentional—and then get out and move on to the next clause. The addition of surplusage language only creates an opportunity for challenge and litigation, and remembering the silence is the sharper sword is often wise legally as well as emotionally.

 

Nota Bene: Although I am an attorney, I am not your attorney. Nothing in this article should be construed as legal, investment, or tax advice. This article should be read for entertainment rather than legal advice purposes. If you are engaging in asset planning, you should consult learned counsel rather than a blog.