What is it about an individual's death, most often a family member, that causes those who are left behind to quarrel with one another? Are there really legitimate legal issues that need to be resolved? The following questions come to mind:

  • Is there something unique about the structure of a family that morally obligates its members to necessarily like or get along with one another?
  • Does the death of a parent have any particular significance or impact upon the surviving family members' relationships?
  • What is the motivating factor that causes someone to commence a family dispute?
  • Are there clues that may make someone more sensitive to the possibility of a dispute at some point in the future?
  • What safeguards may be taken in the course of planning an estate to minimize the risk of a dispute subsequently occurring?
  • Do strategies exist that will facilitate the resolution of the dispute?

This paper will address some of these questions to help equip estate planning professionals with the necessary tools to help the client identify potential areas of conflict and develop an estate plan that minimizes the risk of those potential areas of conflict transforming into a family dispute.

The Family and the Estate Planning Process

The distribution of an estate often involves interpersonal family relationships, some of which existed from birth while others came into existence at a later point in life. Daily events will inevitably result in these individuals coming into conflict with one another. Conflict is a normative consequence of relationships by virtue of the often intense emotional elements involved. A fundamental issue is that of analyzing the reason why conflicts often become converted into disputes.

Disputes within families are unfortunately not uncommon. They arise equally within families in which the relationships among the members are perceived as very loving and close as well as within families in which those relationships are already strained; the disputes are evident in families with substantial wealth as well as in those with modest financial resources; the disputes will surface within families where the relationships span a significant number of years as well as in those in which the relationships are of relatively short duration.

Only through understanding and analyzing the peculiar and unique nature of relationships among family members can one better comprehend the possible reasons and explanations for the disputes that often arise. Once the underlying reason for the dispute is determined, it can be properly assessed and a process developed to resolve it.

 The family unit is a particularly unique type of social structure for a variety of reasons. The relationships among family members are very different from those formed among professional colleagues, peers, or other social networks. Regardless of the theories behind this structure, many scholars believe that because of its uniqueness of character, the family is an entity that generates particularly highly-charged emotions and feelings from its members, whether caused by genetics, environment, or both. The family, therefore, is a social structure in which there is great potential for the relationships formed therein to be positive and healthy or negative and unhealthy. One might conclude that every individual's character and personality are greatly influenced by the family unit in which they are raised.

Increasing Variety of Family Relationships

Many different types of family units have emerged in the past few decades in addition to the stereotypical "traditional" family structure.

With a divorce rate approaching 50%, approximately one out of every two individuals is no longer married to their original spouse. New relationships are being formed between previously-married individuals and individuals who may or may not have been previously married. One or both of these individuals may bring with them a child or children from a prior relationship.

The ways in which children are added to existing relationships are also changing. More single people are investigating ways to become a parent without necessarily entering into a marital relationship. Common-law spouses are having children, and new reproductive technologies allow individuals to bear children "on their own". Adoption is a well-recognized way in which children are being brought into family relationships.

The mere fact that many varieties of family structures exist does not imply any evaluative opinion as to the advantages and disadvantages of each of them. Noting these changes is solely intended to illustrate the additional layers of relationships within many families today.

The simple point is this: if current theories on family structure and the relationships formed therein are based on the "traditional" family, there are bound to be many more theories on the nature of the family now that the varieties or types of families have changed and expanded. At a minimum, one can speculate that the potential for additional challenges within these families will increase significantly.

These "new" family relationships cannot be viewed in isolation. In many situations, the members are coming from, and may still be connected to, prior complex relationships. Therefore, it is often not merely a matter of locking the door on the old house and turning the key to enter the new one. Very often, both properties require continued and ongoing management and supervision.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.