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Family Dysfunction Part V: The Wake of the High Achiever

It is a curious reality of probate litigation that the qualities common to people who create wealth are also qualities of people who create family dysfunction.

What I see is that high achievers (whether they be business people, cutting edge doctors, successful lawyers, or esteemed college professors) tend to be driven people, people who put their passion ahead of their families, and more to the subject of this post, people who were/are overly critical of those they love.  In many families where Dad (that is the most common scenario, although it could be Mom) is highly successful, the kids are screwed up.  The problem typically centers on the inability (or obliviousness) of Dad to the need for him to validate his children.  The children spend their lives feeling like they never measured up to Dad, his high standards or what he expected of them.  As long as he is alive, they live in his shadow, intimidated but at the same time anxious to obtain his approval.

Because of their unique qualities and driven nature, when these high achievers become incompetent, they are difficult to deal with and create special challenges (as discussed in the “Fall of the High Achiever” below); and when they die, their money is often the subject of litigation (the related, but distinct topic of this post). 

It is a dynamic that often extends to multiple generations, as does the wealth.  The kids are impacted, suffering from self-esteem issues and competitive as between them (who did Dad favor or disfavor?), and so they become unstable, often alcoholism is involved; and then their kids (the grandkids) have their own set of issues. 

All parents screw up their children, and (I’ve probably mentioned this before) the hardest thing in life is putting down the baggage that our parents hand to us.  For the children of the high achievers, this task is especially monumental. This reality is the source of much probate litigation: The very families in which there is enough money to justify protracted litigation have the dynamics/dysfunction to drive it.

Family Dysfunction Part IV: Second Marriages

I advise clients who are in second (third, etc.) marriages, that their children do not like their second spouse.  And I’m not joking. I tell clients that although they may be the exception to the rule, my experience tells me: offspring don’t like the man or woman who replaced their parent in the hearts and home of their other parent.  No matter how they act while you are alive, the knives will come out when you’re gone.  It’s just the way that plays out. Deal with it.

An article I wrote on this topic was recently published in the Michigan Funeral Director’s Journal.  Click here to read that article: My Kids, Your Kids, His Kids, Her Kids: Why Second Marriages Make Estate Planning a Challenge.

In setting up estate plans for people who have children that are not the children of the spouse they have at the time of our meeting, I like to be frank about the potential for litigation after they die, and I like to avoid creating documents that invite that litigation.  In fact, if this series on family dysfunction were done in order of issues most likely to give rise to litigation, second marriages with children from prior relationships would be my number one indicator.

The most common (thought certainly not the only) source of litigation in these situations arises as a result of the tool many planners (including myself at times) use to accomplish the primary objective of the spouse who is doing the planning.  That objective is: I want my estate to provide for my spouse if s/he survives me, but when s/he passes, I want the rest to go to my kids.  This objective is, as they say, easier said than done.

The detail in which this devil sits is the standard placed on the access of the surviving spouse to those assets that continue in trust after death for the benefit of the surviving spouse, and the selection of someone to enforce that standard.  If you say that I want the assets to continue in trust so as to allow the surviving spouse to enjoy the standard of living we enjoyed while I was alive (or any other “ascertainable standard”), after you’re gone, someone has to decide as to particular requests for distributions, whether that request is compliant with the standard.  If that decider (the trustee) is one or more of your kids, you’ve created a serious conflict of interest. A professional trustee works well here, if you go down this path.

You also have to consider such things as:

  • What if my surviving spouse remarries or cohabitates?
  • If I leave a house, can the surviving spouse sell it and move somewhere else?
  • Does the trustee get to consider the other resources that may be available to that surviving spouse, and does that mean s/he has to report her assets and income to the Trustee?

An alternate approach can be to dedicate specific assets to go to the kids at the death of the first spouse to die, and to leave the remaining assets to the surviving spouse without restriction.  Insurance can sometimes work well here.

Another popular source of litigation is if assets were transferred from the parent-spouse to the surviving spouse during the life of first spouse to die, especially when that parent-spouse suffered from cognitive impairment during the period when assets were transferred.

When estate plans change to favor the surviving spouse later in the game, and/or during a period when the parent-spouse was suffering from some level of cognitive impairment, look out.

Another bad sign, but oh so common, is when the second spouse actively engages in the alienation of the parent from the children.

These issues make planning for second marriages challenging, and cookie-cutter approaches often lead to frustration and litigation after death.

Family Dysfunction Part III: Control Freak Fiduciary

Much litigation is created or avoided in the planning process when the people planning for their estate decide who to put in charge.

Words a planner doesn’t want to hear: I appointed my oldest son as trustee/executor.

Two immediate reactions: (1) men are more likely to be control freaks than women, and (2) the oldest child is more likely to be a control freak than any other sibling.  At least that’s my experience (youngest child being second most likely, and middle children being the least).

Of course many oldest male children are solid people and will do the job just fine.  The point is that when we think about who we want to put in charge, it is always best to avoid people with control issues.

The job of trustee/executor is difficult, demanding, and unglamorous.  A true labor of love.  When the person in charge finds pleasure in the process because they get to have control over the other beneficiaries, things usually go badly.

It’s not even necessary that the trustee/executor be doing anything wrong.  The simple refusal to share information can ignite emotional fires, especially when there is a history of overly assertive conduct between the parties/siblings.  When information isn’t shared, when buttons are pushed, when the “mom put me in charge, and now you have to listen to me” card is played, litigation can blossom even if the trustee/executor is paying the bills and moving with some reasonable speed toward settlement.

And let’s not forget the in-laws.  It doesn’t have to be the sibling who causes the problems.  Not uncommon is the spouse of the appointed sibling who asserts control.  Your son (or daughter) is an easy going guy (or gal)- too easy going in fact – his/her spouse walks all over him/her.  You know (or should know) when s/he becomes trustee/executor that in-law will be calling the shots (and pushing the buttons).

My banker friends would want me to note that one way to avoid all of this is to appoint a professional trustee/executor to handle the job, and take this whole control dynamic out of the mix – and that’s certainly a good option to consider.

Family Dysfunction Part II: Fall of the High Achiever

In the middle of a particularly difficult guardianship matter, a seasoned probate judge once said to me “that will be me and you Doug, when we get there.”

The subject of the proceeding was a retired college professor/author, had remarried and fired every doctor who told him he was impaired.

The Judge’s point was that a disproportionate number of really difficult probate matters involve people who had positions of authority during their work lives, but who became demented.  I have seen this to be true far too many times.  Give me a retired Judge, doctor, lawyer, college professor, or businessperson with dementia, and you have the key ingredients for a very difficult case.  Add a new love interest that facilitates the denial, and things get really dicey.

This is because these people: (1) have been “in control” all their lives and rage against the idea that they are losing control, and that someone else will have control over them, (2) they have big ego’s and think they know more than anyone else, and (3) that piece of them that made them high achievers/go-getters included a type A personality which meant they were overly critical of the people around them (their family members) and therefore created dysfunctional relationships with the people now involved in trying to assist them with their impairments.

A corollary to this is the “whoever tries to help me is my enemy” syndrome.  This is where the “good child” who decides that they have to do something to help mom or dad (typically dad) with their impairments is seen as the enemy by the impaired adult.  The impaired adult looks at anyone aligned with this good child as part of the conspiracy, and conversely, anyone who stands with them against the good child, as a friend.  This commonly results in the impaired adult creating new estate planning documents elevating the positions and interests of those who help them deny their impairment, to the detriment of the child or children who are trying to do the right thing.  An invitation to exploitation for sure.

Family Dysfunction Part I: Sibling Rivalry

In probate litigation cases, attorneys frequently observe that “this family is really screwed up,” or, more professionally: “this family is completely dysfunctional.”

That’s a conclusion.  I think we can do better than that.  It seems to me there are patterns, or common qualities, to many of these cases.  Some of these patterns arise frequently, others only periodically.  So, in a series, which begins with this post (and for which there is no planned schedule or timetable), I will offer my thoughts on the patterns of family dysfunction that I see arise in probate litigation matters. [I acknowledge that my opinions are based on no expertise in psychology or any other related science, only the experiences of my own life and legal practice.]

I start with the ever popular “sibling rivalry.”

People spend much of their lives seeking validation.  Not necessarily love – just validation:  “you’re ok.”

If you stand in any bar, cocktail party, or community gathering, much of what you hear can be boiled down to a simple conversation that goes on endlessly but in many varied forms:

Person Number 1: I think you’re ok.  Do you think I’m ok?

Person Number 2: Yes, I think you’re ok.

Throughout life we look for that validation from people around us – in childhood that validation is most important from our closest family members – including siblings.

As I see it, sibling rivalries that lead to litigation can result from two variations of the sibling rivalry theme.

  • Unresolved Childhood Sibling Rivalries

During childhood, validation from siblings is not always forthcoming.  Children struggle with their own identities and self-esteem issues, which at times makes it hard for them to validate their siblings.  Eldest children often have a particularly difficult time validating their younger siblings.   In our adult lives we have the opportunity to fix the existing validation issues with our siblings that were created during childhood.  So, if one child felt un-validated by a sibling, in their adult relationship the sibling who was perceived to have failed to adequately validate can fix the relationship with mature actions of validation.  “You matter to me, and I want to stay connected to you in our adult lives.”  When this doesn’t happen, issues arise that may play themselves out later in family fights over parental control and estate settlement.

  • Adult Distancing Sibling Rivalries

In addition, after siblings launch and go their separate ways, with some “succeeding” more than others, new inter-sibling validation needs evolve and there is the potential that our adult relationships with our siblings give rise to new validation issues (or exacerbate existing ones).  This is especially common between siblings who have reached differing levels of accomplishment in their adult lives.  In the adult world, some of us rise and some of us fall on that illusory scale of social importance.  Some people go to college, some do not.  Some go to better colleges.  Some achieve more success in their respective professions.  Some earn more money.  Children who rise higher than one or more of their siblings, will often create a need in the less successful siblings to demonstrate that notwithstanding their social status, they still think of their siblings as important people to them.  When this doesn’t happen, the sibling rivalry issues may also arise.

I should note that validation is different from love.  Love is more demanding and complicated.  It is nice if your siblings really love you, want to spend holidays with you, call you regularly; but in my experience siblings don’t need to love each other to avoid family dysfunction, so long as there is validation.