Who is a descendant?
Isn’t that obvious?
For most families it is not complicated. This memo is meant to alert clients to situations when a Will or Trust might need an amendment to direct their property correctly.
When a person dies, without a Will, the estate is governed by beneficiary designations and by Minnesota statutes, including the definition of “descendant” and the definition of “child”.
When a person writes and signs a Will, the Will signer, called a “Testator” can exclude individuals, or classes of individuals. The testator can include individuals or classes of individuals. The testator can define, for purposes of his or her Will, whom is included (or excluded) by terms like “descendants”.
First who is included?
Children by birth or adoption are, of course, “children”. Children do not include step children, or foster children, unless adopted.
Adoption after death or divorce of a parent.
In some cases, adoption of a person removes his or her inheritance right through one or both genetic parents. However, if a person is adopted by a spouse of a genetic parent, after the other genetic parent died, that adoptee continues to inherit from and through the deceased genetic parent. Example might be John and Gail have a child, Edward. John dies. Gail marries Bill. Bill adopts Edward. John’s parents die without Wills. Does Edward inherit a share from John’s parents?
Change the facts. John and Gail have a child, Edward. John and Gail divorce. Gail marries Bill. After a notice and hearing, Bill adopts Edward. John dies. John’s parents die without Wills. Does Edward inherit a share from John’s parents? Probably not.
Minnesota Statute 524.2-119
John’s parents could have written Wills that specifically include or exclude grandchildren, like Edward, who are adopted.
Unusual or late Adoption
Adoption creates a legal relationship. One part of the relationship is the commitment and responsibility to care for and support the adoptee. Adoptions also create a conduit through which one might inherit or have other legal rights. An adoptee might be older than age 18 years or 21 or even much older. An adopter might, after due review of all the consequences, and resulting responsibilities, decide to adopt a person of a similar age, or someone much older. If the individuals are competent and not under undue influence, I am not one to question. However, this might not be what is intended by clients who want to leave property to their “descendants”.
Without a Will, all adoptions are considered in determining “descendants.”
One can add a clause to a Will or Trust that excludes persons adopted by one of their descendants after the adoptee’s age of 21, or some other age.
Child in gestation.
Minnesota law assumes that a child who is in gestation at the time of an event is “treated as living at that time”, provided that the child survives by 120 hours after his or her birth.
Example: Beth survived her husband, John. She is not married, has 2 children, Rick and Scott. She writes a Will, leaving 50% to her children and 50% to the children of her children. When Beth dies, Rick has one child and Scott has three children. Rick and his wife have another child, born 12 months after Beth died. Scott and his wife have another child, born 4 months after Beth died. Both new grandchildren survive more than 120 hours after their births. Are the children born after Beth’s death entitled to a share? The child born 12 months after Beth’s death was not in gestation when Beth died, and does not inherit a share. The child born 4 months after Beth died would be included.
If the families are young, a client might want to create a will or trust, which specifically postpones the creation of shares for a few years.
Children of unmarried parents
“257.53 RELATIONSHIP NOT DEPENDENT ON MARRIAGE.
The parent and child relationship may exist regardless of the marital status of the parents.”
Over time, the presumption has shifted to inclusion of descendants, regardless of whether the parents were ever married. A Will can be written to make specific references to descendants to include or exclude them and perhaps to make a trust so that funds are managed for the person, for a period of years.
New laws have been enacted to provide some assumptions in the area of children born through assisted reproduction.
Section (7) states “child of assisted reproduction” means a child conceived by means of assisted reproduction by a woman other than a child conceived pursuant to a gestational agreement.
This area is very complicated. If anyone in a family is involving third parties in reproduction, it would be wise to write the Will or Trust, so that one’s intentions are clear.
It is important for clients to get legal advice whenever any of these life events affect their family.
Jay A. Joyner