Sometimes clients ask questions where the answer differs as to legality versus morality. As a result, the attorney should be prepared to be both counselor at law and not just an attorney at law.

A couple examples of actual cases (all dealing with an inheritance) illustrate these differences.

The first fact scenario concerns the use of bank accounts that either name a child or spouse or someone else as a joint owner or the signature card for such bank account has a survivorship provision contrary to the named beneficiaries of the account owner’s Last Will and Testament. For example, mother of five children opens a bank account in joint ownership (with only her funds being deposited into that account) with the child that lives in the same city. She thinks this will make it easier for her son to take care of her bills should she become disabled. After mom dies, the son asks if he has legal obligation to split the funds with his siblings. The legal answer is “no”, but the moral answer is “yes” if he knew that was mom’s intent.

This is a common situation when there is a second marriage and the couple establishes a joint account and the deceased spouse has children from a prior relationship (assuming there was no prenuptial or postnuptial agreement dealing with such account). The children of the deceased spouse think they may be entitled to a portion of that account if their deceased parent’s Will named them as a beneficiary. However, the contract or beneficiary designation usually supersedes the Will pursuant to the Contracts Clause of the U.S. Constitution. The answer as to morality of who should be entitled to joint account funds (assuming the funds were only the funds of the deceased spouse) would be dependent on the intent of the deceased spouse. For example, if the deceased spouse thought his or her children would contest any Will offered for probate, then the legal and moral answer as to the surviving spouse receiving all of the funds in that account would be “yes”. However, if the deceased spouse thought that his or her Will would be followed as to the distribution of that bank account (assuming children or someone else other than the surviving spouse were the beneficiary or beneficiaries of the Will), then the answer upon legal and moral grounds would differ.

Similarly, we often see a Will in which the deceased gives all of his or her assets to one child who is healthy at the time the Will was signed to take care of the disabled child to avoid the loss of public benefits for the disabled child since public benefits are usually “means tested”. The healthy child has a moral (not a legal) obligation to take care of his or her disabled sibling. It should be mentioned that if a child is disabled, then it is usually better that a supplemental needs trust be created within the Will of the parent for the benefit of the disabled child which would not only create a legal obligation for the benefit of the disabled child, but also avoid bad things that could happen to the healthy child (i.e., death, disability, creditor issues and marital issues).

The preceding cases are just a few examples where the decision as to what is legal differs from what is morally correct.

If interested in learning more, consider attending our next free “Estate Planning Essentials” Workshop on Thursday, May 23, 2019 at 1:00 p.m. by calling us at (214) 720-0102 or signing up online at www.dallaselderlawyer.com or by clicking here. We are also having a Facebook Live Event on Saturday, May 4, 2019 from 10:00 a.m. to 11:00 a.m. Attendees of the live webinar (and the “Estate Planning Essentials” workshop) will be eligible for a free one hour vision meeting with Michael B. Cohen. Please RSVP to the “Facebook Live Event” by clicking here and then click “going” to submit your questions for Michael B. Cohen (you must be logged in to Facebook in order to RSVP). You may also submit your questions for the “Facebook Life Event” by clicking here.

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