by Dana Bookbinder Esq.~Estate planning is a personal process that should reflect the individual or couple’s values, family circumstances, and even religious beliefs. While many estate planners do not take the time to listen and assist the client in wading through their thoughts on asset disposition, health care, and potential incapacity later in life, this process is critical to creating documents that truly reflect the individual’s values. When a planner takes the time to reflect a client’s values in his estate plan, the documents generally withstand the test of time, barring a significant life change for the client.
Family circumstances weigh very heavily in creating documents. Not infrequently, couples wish to leave their children unequal shares from their estate. One child may be a caregiver, another child may live at a distance and never call, the parents may have made a loan to one child which remains unpaid, etc. A beneficiary who has special needs who may one day apply for public benefits can be much better off receiving assets in a trust rather than outright. Selecting an agent or co-agents to manage the parent’s assets in the event of the parent’s incapacity is often a difficult decision and requires the parent to assess his relationship with his children and their trustworthiness. Selecting an agent under an Advance Health Care Directive is difficult, mostly because the individual signing the document needs to ensure that his health care agent will carry out his wishes even if the agent’s own beliefs differ from his regarding healthcare at the end of life.
Religious beliefs also factor into estate plans, and they should. Issues such as charitable giving, providing care for a relative versus utilizing a nursing home, selecting an agent under a power of attorney or an executor, utilizing a trust for a beneficiary, and end of life decisions all are impacted by spiritual values. For instance, the Catholic viewpoint is likely to be different on the issue of healthcare for a pregnant individual facing end of life from a Jewish or Islamic stance. Organ donation will also be viewed differently by various religions.
The Orthodox Christian Church may take a contrary view to pain relief in certain cases if it would interfere with the individual’s ability to consciously contemplate his beliefs and confessing his sins. An individual who holds Muslim beliefs may consider leaving his son more money than his daughter. Jewish clients may wish to include provisions that if they must rely on meals furnished by others, the meals must be kosher. People of Hindu faith may wish to request that provided meals are all vegetarian. An individual who is a Jehovah’s Witness may reject a blood transfusion under all circumstances.
Because the impact of religion on estate planning issues can be significant, estate planners may even wish to include certain clauses provided by a church or synagogue in the individual’s advance healthcare directive.
Religions generally all encourage charitable giving, but how liberal a provision should an individual write into his power of attorney? Should an extremely broad provision be used that could enable the agent to gift until the individual’s estate is reduced to Medicaid eligibility limits? Should a somewhat more limited gifting power be used so that gifts are merely made to reduce an estate for estate tax planning purposes? These are issues that must be specifically addressed with each client.
Because estate planning is such a personal process, clients may wish to consult with their religious advisors along with their attorneys. On the other hand, certain religious beliefs if carried over into an estate plan could cause conflict among the beneficiaries. For example, a couple who leaves the majority of their assets to their son and deprives their daughter is likely going to cause animosity between the children. Likewise, a clause in a Will withholding an inheritance from a beneficiary if the beneficiary marries outside the religion may be contested by the beneficiary. There have been cases across the country on this issue, some striking down a clause against intermarriage for a beneficiary and others upholding such a clause. Such a clause should only be inserted into a will after much discussion between the estate planner and the client.
Estate planning is about passing on a legacy to the beneficiaries. While plans necessarily address finances and provide strategies to minimize taxes, they must also reflect spiritual values and the reality of family circumstances. Only a thoughtful, interactive process can accomplish this.