Estate of Kester v. Rocco, — So.3d —-, 2013 WL 3155849 (Fla. 1st DCA June 24, 2013)

Most parents want to treat their children fairly in their estate planning, but fair doesn’t necessarily mean equal. We all know there are perfectly valid reasons for why a parent might opt to NOT divide the family pie in equal shares, such as compensating a middle-aged daughter (and yes, it’s usually a daughter) who’s given up part of her own life to care for mom or dad. This type of scenario comes up all the time in undue influence cases where one child — the dutiful caregiver — is favored over his or her siblings in mom or dad’s will. If you’re a trusts and estates lawyer in Florida and you haven’t dealt with this kind of case yet, just wait, sooner or later you will.

The new normal: middle-aged children caring for elderly parents:

Ask people where they want to end their lives, and for most the answer is home. For more and more elderly Americans that means moving in with a middle-aged child. According to a 2008 MetLife study nearly 10 million adult children, or about 1 in 4 (mostly Baby Boomers), provide personal care to parents in need. Not surprisingly, as compared to the rest of the U.S. this trend is especially pronounced in Florida which, according to the U.S. Census Bureau, lead the nation in terms of having the greatest share of its population aged 65 and older in 2010 (followed by West Virginia and Maine).

But just because you care for an aging parent, is it fair to get a bigger piece of the inheritance pie? If the answer to that question is in any way related to the economic costs borne by adult caregivers, the answer is clearly yes. Consider these statistics from the MetLife study:

  • The total estimated aggregate lost wages, pension, and Social Security benefits of adult children who become their parents’ caregivers is nearly $3 trillion.
  • The total economic impact of caring for an elderly parent in terms of lost wages and Social Security benefits is on average $324,044 for women, and $283,716 for men, or $303,880 for the average male or female caregiver 50+ who cares for a parent.
  • Adult children 50+ who work and provide care to a parent are more likely to have fair or poor health than those who do not provide care to their parents.

So yeah, from an economic standpoint the case for favoring a care-giver child over an equally-loved — but unavailable — sibling in a parent’s estate plan is compelling. So why do these cases end up getting litigated under some undue-influence theory so often?

Does a dutiful adult child caring for an elderly parent = undue influence? NO

Undue influence is presumed when: (1) a person with a confidential relationship with the testator, (2) was active in procuring or securing the preparation or execution of the devise and (3) is a substantial beneficiary thereof.

Every middle-aged child favored by mom or dad for the sacrifices made to personally care for an ailing parent gets caught up in this three-part test. There’s no escaping it. Consider this typical scenario: did mom “confide” in the daughter whose home she was living in, of course (strike 1); if mom’s too old or frail to drive, then was daughter “active in procuring or securing the preparation or execution of the devise,” of course, who else was going to drive mom to lawyer’s office (strike 2); and finally, if mom had the audacity to actually demonstrate her gratitude for daughter’s sacrifice by favoring her in her will, then presto: daughter’s now a “substantial beneficiary” of mom’s will (strike 3).

Does this mean care-giver daughter should automatically be presumed to have exercised undue influence over mom? Common sense (and a growing body of demographic and economic data) tell us the answer is clearly no. Unfortunately, common sense doesn’t always prevail in a will contest (that’s what we mean by “rolling the dice” at trial). Which means we need an appellate court to remind us of the obvious every once in a while, as the 1st DCA does in the linked-to case above. Taking care of an elderly parent is a “good thing;” no one should be put on the defensive for doing what’s right. That’s not just common sense — it’s the law. So saith the 1st DCA:

Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence. Estate of Brock, 692 So.2d at 911. Where communications and assistance are consistent with a “dutiful” adult child towards an aging parent, there is no presumption of undue influence. Carter v. Carter, 526 So.2d 141, 142–43 (Fla. 3d DCA 1988). Ultimately, “[i]f an adult child … cannot talk to his parent … then we have finally demolished the family ties of love and natural affection.” Id.