Making Things Fair After a Parent's Death

Everyone dies. But what happens to everything that they leave, their earthly possessions?  Deciding who gets what is easier when there’s a will or some other record of what the decedent wanted. Regardless of how much formal planning was ever completed, however, the process of distributing prized (or non-prized) possessions is always shaped by the level of cohesion within the family that settles the estate. With the dramatic changes in family structures over the past fifty years, different family forms could have a powerful effect on how property is distributed.

Naomi Cahn and I interviewed a number of American adults* a year after the death of their parent or stepparent, and we looked for a guiding principle in how they navigated the inheritance process. As we explain more fully in a recent Elder Law Journal article, the phrase “making things fair” served to define the experience of distributing assets, such as houses, cars, life insurance policies, and sentimental items like a work shirt from Sears or a football-shaped beer koozie. We learned that death never seems fair to those who mourn, but fairness weighs heavily when distributing a deceased parent’s stuff, especially in blended families.

In families in which the parents remained married for life, shared internal norms defining fair distribution were often strong, which compensated for the absence of formal planning. Most grown children deferred distribution decisions to the widowed parent and did not formally contest what was decided. This deferral was significant because in the absence of a will, grown children in Louisiana, where all the deaths occurred, have a significant claim to the property. This law was either not known or ignored, and the distribution process happened privately on the timetable set by the widowed parent. A year after the death, grown children interpreted the process as fair even when the widowed parent made choices that everyone knew went against the expressed wishes of the deceased.

For deceased single parents, making things fair in the distribution process tended to fall to one grown child who interpreted the wishes of the parent while weighing the needs of the other siblings. For example, we have written previously about the Guttierez family. We interviewed sisters, Heather and Jackie, after their divorced and single father died leaving four adult children to settle his estate. Heather and Jackie asked their brother to handle the financial aspects of the estate. He agreed and chose not to benefit from the estate since he had been estranged from their father for years after his father accused him of having an affair with his fourth wife. Heather, who lived several states away, also relinquished any claim to the property as a way to honor the care Jackie had provided their father prior to his death. Jackie and their youngest sister, Ginger, eventually split the estate because they were willing to live on the property for almost a year in order to prepare the land for sale. Each sibling sought to “make things fair” by weighing the strength and character of their previous relationship to their father while honoring the sacrifices and needs of each other.

The process of distributing possessions is always shaped by the level of cohesion within the family that settles the estate.

In remarried families, the grown children often described the process of making things fair as marked by conflict. The grown children rarely deferred to the widowed stepparent’s decisions and timetable in the way that grown children did with a widowed parent. Accepting a surviving stepparent’s interpretation of a deceased parent’s wishes often proved challenging and stressed the ambiguous kinship ties between the biological children of the deceased and the stepparent. The closeness of their blended relationship became a determining factor in how grown children perceived the justice of what they inherited. They sometimes fought over asset distribution because they felt that their role as a biological child was not honored.

Candace’s father, for instance, had always promised that “she would be taken care of,” but he failed to put that promise into writing. After his death, her stepmother tried to give her a few sentimental jewelry items in lieu of property or money, but she rejected them, angry that her stepmother had locked her out of her father’s inheritance. Candace, like other grown stepchildren, felt excluded by her stepmother, and she responded by displaying a strong sense of territoriality toward her father’s property. Louisiana law, which would have protected Candace’s inheritance, was not a tool she used, even though she felt that her stepmother’s decisions were unfair.

On the other hand, some remarried families did work well together to “make things fair.” Their level of interpersonal warmth, intentional inclusion of one another in their life stories, and willingness to write a family history together—one that included not only financial issues but also words of appreciation—were the primary differences setting them apart from stepfamilies that fractured, took their conflicts to court, or terminated relationships with one another.

Most Americans have not completed a will, which shows they tacitly presuppose that their grieving families will find a way to settle the property fairly without resorting to legal intervention. This assumption of family consensus and teamwork often holds in families led by married parents, in their first and only marriage. However, single- and remarried-parent households need greater external support in reaching agreement and in mediating conflicts between the related parties, be they step-relatives or full- or half-siblings. Service professionals, such as clergy members and lawyers who often companion couples and families through the life transitions of marriage, divorce, serious illness, and death, should take notice. They can encourage formal planning and conversation particularly in blended or single-parent families as a way to help them avoid future legal conflicts over property. Families of the future will need more help in making things fair.

*All names have been changed to protect the identities of our interview cohort. Our research is featured in volume 23, no.1 of The Elder Law Journal and will be presented in the book Homeward Bound, slated for publication by Oxford University Press in 2016.