Mama said “Papa’s smart”
Papa got a whole lotta heart
And papa would do his part
When the game get hard
When James Brown died in 2006 at age 73, he left his $100 million dollar estate in a charitable trust to help educate underprivileged children in South Carolina and Georgia and largely disinheriting his children. Yet, over four years since his death the trust has not made any distributions to help his intended beneficiaries.
Brown’s Will and Trust were executed in 2000. However, Brown was married and then had a child after the execution of the estate plan. Litigation had dragged on and will continue to do so for the foreseeable future. The details of the story can be read in this Rolling Stone article.
A pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not know of the party at the time the will was written. The law generally tries to protect spouses and children in this instance. New Jersey’s pretermitted spouse statute is found at N.J.S.A. 3B:5-15 protects spouses and domestic partners by providing that:
If a testator’s surviving spouse married the testator after the testator executed the testator’s will, or if a testator’s domestic partner formed a domestic partnership with the testator after the testator executed the testator’s will, the surviving spouse or domestic partner is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse or domestic partner would have received if the testator had died intestate …
Of course there are then several exceptions to this rule in the event that the Will was written to disinherit a future spouse or partner intentionally or if the spouse or domestic partner was provided for outside of the Will.
New Jersey’s pretermitted child statute is found at N.J.S.A. 3B:5-16 and provides that such an omitted child would receive a share of the estate “unless the will devised all or substantially all of the estate to the other parent of the omitted child.”
The Estates, Powers and Trusts Law of New York provides a similar result for after-born children at §5-3.2. Finally, an omitted spouse (which would of course now include a same-sex spouse) is provided at EPTL §5-1.3 the equivalent of an intestate share “ratably out of the portions of the estate passing under the will.”
The bottom line I suppose is that even good estate planning won’t keep contestants away when there is enough money at stake, but it certainly can’t hurt.