The Hidden Children: Rethinking Estate Planning for Modern Families
By Joel Bernstein
The Question No One Knows How to Ask
How do you find out whether a client has a child born outside marriage? This is the question Professor Pennell poses that keeps estate planning attorneys up at night. It becomes even harder when the client's spouse does not know about the child. Most lawyers never figure out a good answer.
National Vital Statistics Reports show that over one-third of all births today are nonmarital. That means 30% of the total American population under age 18 was born outside marriage. These are not rare cases. These are millions of American families navigating estate planning with secrets that can destroy carefully crafted plans.
The Impossible Meeting
Imagine you are an estate planning attorney in Newton. A married couple sits in your office to discuss their estate plan. You need to ask if either has children born outside their marriage. How do you ask this question with both of them sitting there?
If you ask about nonmarital children with both spouses present, you might reveal a secret that destroys the marriage right in your conference room. The family could leave your office in ruins. If you don't ask, you might create an estate plan that misses a critical beneficiary who has legal inheritance rights under Massachusetts law. Years later, after your client dies, the hidden child could appear and the entire estate plan could unravel.
The Joint Representation Trap
More and more lawyers represent both husband and wife together. This is called joint representation. The couple signs an agreement saying the lawyer will share all information with both of them. No secrets allowed. But joint representation assumes both spouses know everything about each other.
Pennell notes that two trends have increased dramatically over 35 years. More lawyers practice joint representation of spouses. And more people have children born outside marriage. Yet the planning profession has not adapted. We have no professional guidelines for these conversations. No best practices have emerged. The lawyer is stuck between professional duty and family harmony.
It's Not Just About Men
Many people assume only men have secret children. But Pennell points out that women have secrets too. Some women are mothers of nonmarital children their husbands know nothing about. This challenges our assumptions about who keeps these secrets.
Sometimes a very young unwed mother's family raises her child as if it was the mother's sibling. The teenager becomes pregnant at 15 or 16. Her parents raise the baby as their own child, pretending the baby is the mother's younger brother or sister. That young mother grows up, goes to college, gets married, has other children. Her husband never learns about her first child. Now she sits in an estate planning attorney's office in Wellesley. Should she mention this child who was raised as her sibling?
What Modern Parents Actually Want
Pennell identifies the most important change from past generations. Unlike the G.I. generation of men, not all parents of nonmarital children want to exclude the child. Many parents today want to include all their children equally, regardless of the circumstances of their birth.
Thirty years ago, having a child outside marriage carried significant shame. Parents hid these children and excluded them from wills. Society expected this treatment. Today, social attitudes have changed dramatically. Many parents openly acknowledge all their children and want to provide for them fairly in estate plans. Parents love their children regardless of how they came into the world.
The Easy Part: Excluding Children
Pennell notes that it is relatively easy to write a provision disinheriting someone. You write that only people named in the will can inherit. Anyone not named gets nothing. This excludes the unwanted child without ever mentioning them by name. The document never mentions the nonmarital child. Other family members reading the will see nothing unusual.
The Hard Part: Including Children Secretly
But what if the parent wants to provide for the nonmarital child? How do you include them without revealing their existence? This is the challenge that has no good solution. If you name the child in the will, everyone sees it. The surviving spouse reads the will. Adult children from the marriage read the will. The secret comes out. Family relationships explode.
Some lawyers try to use trusts with vague language about "all my children" without naming anyone specifically. But this rarely works well. Other lawyers suggest setting up separate accounts during life or using life insurance policies with confidential beneficiary designations. Each approach has serious problems. The client might forget to fund accounts adequately. Bank statements might arrive at home. The spouse might discover hidden accounts. Life insurance requires ongoing premium payments that are hard to hide.
Most married couples own major assets jointly. The house is in both names. Bank accounts are joint. Investment accounts list both spouses. These joint assets automatically pass to the surviving spouse, leaving nothing to give the nonmarital child. Even if the parent finds a way to set aside money, they lose control over those funds.
Today It's Anyone's Guess
Pennell writes: "Today it is anyone's guess what a client might intend." We cannot assume parents want to exclude nonmarital children. We cannot assume they want to include them. Every family is different. Every situation is unique.
Pennell's central question remains: Do you ask? Especially in joint representation with a share-all-secrets confidentiality agreement? Most estate planners avoid asking. They hope clients will volunteer the information. This hope is usually disappointed. Some attorneys meet with spouses separately to ask sensitive questions. Some use confidential questionnaires before meetings. Some simply never ask at all. Each approach has weaknesses. None works perfectly.
The Risks of Not Knowing
When attorneys don't know about nonmarital children, they create incomplete estate plans. These plans don't reflect the client's true family structure. They don't address all the legal relationships. And they often fail when challenged in court.
But asking creates its own risks. Marriages might end. Families might fracture. Clients might fire the attorney for being too intrusive. The attorney must balance these competing concerns without clear professional guidance on how to proceed.
Massachusetts Law and Your Rights
Under Massachusetts law, a nonmarital child has inheritance rights as the parent's heir. If the parent dies without a will, the child inherits alongside other children. The law treats all biological children equally for inheritance purposes, regardless of whether their parents were married.
If you have a child born outside your current marriage, you need careful planning. That child has legal rights whether you acknowledge them or not. Your estate plan must address their status explicitly. If you want to provide for them, work with an experienced attorney and explain the sensitivity. If you want to exclude them, you must do so explicitly with clear language stating who can and cannot inherit.
The Human Cost
Behind these legal questions are real people with real pain. Children who never knew their father. Spouses who discover betrayals after death. Families torn apart by revelations that come out during probate. Estate planning touches the deepest human emotions and the most sensitive family secrets.
Pennell reminds us that estate planning is not just about distributing assets efficiently. It is about helping families navigate complex, painful decisions. It is about providing for the people we love, regardless of family structure. Every family makes its own decisions about these issues, and what matters is that your estate plan reflects your actual wishes and your actual family.
The Profession Must Change
The estate planning profession needs new approaches for modern families. We need guidelines for asking sensitive questions. We need tools for confidential planning. We need to acknowledge that families today look fundamentally different from families 35 years ago when most of our standard practices were developed.
Pennell observes that both mutual representation agreements and the incidence of nonmarital children have increased dramatically since he began practicing law 35 years ago. But has the planning response kept pace with those changes? For most estate planners, the honest answer is no. We have important work to do.
A Challenge for the Future
Pennell's section 1310 challenges us to rethink estate planning for modern families. Thirty percent of American children under 18 were born to unmarried parents. This reality demands new approaches, new sensitivity, and new professional standards that acknowledge the complex family structures that are now the norm rather than the exception.
Professor Pennell's question echoes across the profession: Has the planning response kept pace with these changes? The statistics tell us that modern families include millions of nonmarital children. The law gives these children inheritance rights. Yet the planning profession still lacks clear guidance on how to address these situations sensitively and effectively. That needs to change.
Citations
Pennell, Jeffrey N. "It's Not Your Father's Buick, Anymore: Estate Planning for the Next Generation(s) of Clients." University of Miami Institute on Estate Planning, Volume 43 (2009). Originally published as "The Joseph Trachtman Lecture," ACTEC Journal, Volume 34 (2008).
National Vital Statistics Reports, Centers for Disease Control and Prevention (2007). Statistics on births to unmarried parents.