Don’t let the grave stop you from harassing a boorish in-law.
Texas thinks it is a fine idea. It is completely legal to write your will in such a way that your daughter does not receive her inheritance until after she has divorced her husband, or he has died. It does not matter that your will could give the impression that the husband is a worthless or profligate husband who would otherwise squander her inheritance. He probably is.
As for any concerns that your will may incite a divorce, what of it? No public policy violation there.
Nor is there a problem with your daughter getting money only after her husband dies. The word “die” is benign. Lots of people die from natural causes and the will did not openly suggest murder.
The bottom line is that you have the greatest freedom to dispose of your estate in your will or trust. You can leave your property to someone for any reason, for no reason, or even for the wrong reason.
Some people want to dispose of their property according to a cultural belief that is not the perceived norm. For example, Halachah, Jewish law, determines who inherits in order of priority – a wife does not inherit from her husband, a husband inherits from his wife, then his natural sons inherit, and then his daughters. By contrast, Sharia law requires two-thirds of the property pass in certain proportions to family members and the remainder to the person’s sons. You can incorporate these, or any other religious or cultural beliefs, into your will, implicitly or explicitly, and it won’t be voided.
What is a Conditional Bequest?
You can also dictate in your will or trust how another person must act to receive a bequest. This is called a “conditional bequest.” You can make a bequest to someone conditioned upon proof that they are not addicted to illegal drugs. You can leave property to someone conditioned upon their belief in a certain religious faith. You can have a condition that someone change their residence to another state to receive a bequest. You can condition the bequest upon someone graduating from college or being gainfully employed.
You can tack conditions onto conditions. For example, your will could state that the money goes to Brad only if he is at least 35 years old, married, and living in Houston. While some might question your choice of Houston, the will is still enforceable.
When Can a Conditional Bequest Be Voided?
That said, it is possible to go too far. A condition that violates public policy will be voided. In one Texas case, a person made a bequest to minor children conditioned upon a certain person not being appointed their guardian. That bequest got tossed because a guardian is appointed by a probate court and the children had no control over who was appointed.
A condition also cannot require illegal action. If a will, for example, conditions a bequest upon a requirement that the person commit murder, then that bequest is void.
The laws regarding the validity of a conditional bequest are unique to each state and country. Canada, for example, forbids bequests that are conditioned upon a person converting to a certain faith. You should always research the laws where you are domiciled to make sure your bequest will be upheld.
A conditional bequest should be made only when necessary for a valid purpose. Consider all your options to make sure using a conditional bequest is the most effective way to achieve your goal.
Virginia Hammerle is president of Hammerle Finley Law Firm. She is an Accredited Estate Planner, has been Board Certified in Civil Trial Law for 25 years, and recognized as a Super Lawyer for the past 10 years. She blogs regularly on senior issues and the law and has a monthly newsletter. Contact at legaltalktexas@hammerle.com.
