Who Is Your Descendant: Intentional Limitations Or Broadening Of Definitions In Your Will Or Trust

Wills and trusts, instead of designating a specific person to inherit, often name a group or class of people such as your “children,” “issue,” or your “descendants.” So, how the term used is defined could determine who might inherit from your estate when you die, or a trust that you create. There are situations where some people may choose to deliberately restrict, or conversely, increase the definition of the group who might be included in these definitions. For example, some people may wish to limit their largess to those who remain members of a particular faith. Another category that raises potential definitional concerns is for children of someone or a couple who are LGBTQ. This article will explore these considerations in naming and defining descendants in your estate planning documents.

A suggestion of this article, which will be explored in different contexts below, is that for some people, perhaps many, creating a new role of a special trust protector holding a limited or special power of appointment to determine who should be included or removed from the definition of “issue” or “descendant” in the governing legal documents may be worth considering. There remains considerable uncertainty in many situations from religious beliefs to lifestyle choices that could affect the determination of who should be an heir or beneficiary. Those uncertainties are compounded by the advances in medical technology that have created issues that would have been viewed as science fiction only a decade ago. No doubt medical technology will continue to advance and new issues and concepts will arise in future decades. All of this is compounded by the evolving composition of the American family.