Social Security benefits for kids conceived after Dad's death?

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GloriaInTX's picture
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Social Security benefits for kids conceived after Dad's death?

Should babies conceived after the death of the father by IVF or artificial insemination receive survivor benefits?

Eighteen months after Robert Capato died of esophageal cancer, his wife, Karen, gave birth to twins who were conceived by artificial insemination.

On Monday, the U.S. Supreme Court heard arguments to decide whether the twins are eligible for Social Security survivor benefits.

The Astrue v. Capato case is one of about 100 similar cases brought to the Social Security Administration by children born by artificial insemination after the death of their father, according to NPR. With in vitro technology increasing in popularity, the case has grabbed a lot of attention from the media.

The Washington Post said that while a decision won't be made until this summer, the justices seemed disinclined to award survivor benefits to the Capato twins -- partly because the survivor benefits laws don't translate well to modern reproductive technology like artificial insemination. The justices are guided only by a 1939 federal law for a "child or legally adopted child." The law says that it's up to state laws to determine whether the benefit seeker is eligible to inherit property.

"I think the problem is that we're dealing with new technologies that Congress...wasn't anticipating at the time," said Charles A. Rothfeld, the Capatos' attorney.

"It's a mess," Justice Elena Kagan told The Washington Post.

Checking the twins' eligibility to inherit seems simple enough, especially since Karen and Robert Capato signed a notarized statement that any children "born to us, who were conceived by the use of our embryos" shall in all aspects be their children and entitled to their property, The Washington Post said. However, the statement was not included in Robert Capato's will at the time of his death -- preventing the children from being able to legally inherit under Florida law.

The Social Security Administration originally rejected the twins on the grounds that their father would have to been alive during their conception in order to receive survivor benefits, hence the term "survivor." A federal court judge said they had to qualify as Capato's children before his death to be considered "dependents," or qualify under state inheritance law as children who could legally inherit.

"There is no question that children who are born, who are conceived naturally in the marriage and are born after the father's death are deemed to be dependents and receive benefits," Rothfeld told The Associate Press. "So I don't think that the fact the child was born after death says dispositively that they were not dependent."

The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled in favor of the twins, saying that the twins were clearly biological children of Robert Capato and should receive survivor benefits. Other federal appellate courts disagreed, and the Obama administration appealed to the Supreme Court.

http://www.syracuse.com/news/index.ssf/2012/03/astrue_v_capato_should_childre.html

Joined: 12/10/05
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No, they shouldn't get "survivor" benefits. They weren't alive at the time of death to have survived it. They were born to a single mom.

KimPossible's picture
Joined: 05/24/06
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I agree with the SS Admin. Had they been conceived in vitro, while the father was alive = eligble.

Conceived in vitro after the father is deceased !=(not equals) eligble

GloriaInTX's picture
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I don't see any reason why these kids shouldn't be eligible. Their father paid that money into the system, why shouldn't his children get the money since he died before he could collect. He definitely planned to have the children before he died because he specifically banked the sperm before his cancer treatment so he could have them.

KimPossible's picture
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"GloriaInTX" wrote:

I don't see any reason why these kids shouldn't be eligible. Their father paid that money into the system, why shouldn't his children get the money since he died before he could collect. He definitely planned to have the children before he died because he specifically banked the sperm before his cancer treatment so he could have them.

I don't think you should be able to take the banked sperm of a deceased man and receive survivor benefits with it. Doesn't make sense to me. Survivor benefits are essentially life insurance, they are meant to help prevent hardship on a provider's dependents.

These children never had an existence where they depended on the provider....the decision to have them was made after his passing.

GloriaInTX's picture
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"KimPossible" wrote:

I don't think you should be able to take the banked sperm of a deceased man and receive survivor benefits with it. Doesn't make sense to me. Survivor benefits are essentially life insurance, they are meant to help prevent hardship on a provider's dependents.

These children never had an existence where they depended on the provider....the decision to have them was made after his passing.

If he paid that money into Social Security all those years why shouldn't his children receive that money? They are still his children it wasn't some anonymous sperm donor. Why should the government get to keep it instead? He didn't have a choice whether to pay into Social Security or not it is mandated.

KimPossible's picture
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"GloriaInTX" wrote:

If he paid that money into Social Security all those years why shouldn't his children receive that money? They are still his children it wasn't some anonymous sperm donor. Why should the government get to keep it instead? He didn't have a choice whether to pay into Social Security or not it is mandated.

I don't think they should receive the benefits because of what the *Purpose* of such benefits are for. To prevent hardship....the notion being that a child you have already conceived was done so under the notion that the provider was helping to provide for them..and the ceasing of that ability to provide creates hardship.

Social security is not some sort of slush fund...where it should cover anything you want it to. The way its handed out has specific purposes.

GloriaInTX's picture
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"KimPossible" wrote:

I don't think they should receive the benefits because of what the *Purpose* of such benefits are for. To prevent hardship....the notion being that a child you have already conceived was done so under the notion that the provider was helping to provide for them..and the ceasing of that ability to provide creates hardship.

Social security is not some sort of slush fund...where it should cover anything you want it to. The way its handed out has specific purposes.

How would covering children of a father who paid that money in be a slush fund? It wouldn't be covering just anything. It would be providing for children with money that he paid in. You don't get money from social security unless you pay that money in.

ClairesMommy's picture
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"GloriaInTX" wrote:

If he paid that money into Social Security all those years why shouldn't his children receive that money? They are still his children it wasn't some anonymous sperm donor. Why should the government get to keep it instead? He didn't have a choice whether to pay into Social Security or not it is mandated.

I don't think biology has anything to do with it. If the children had in fact been conceived through an anonymous donor while the father was alive, they would be his children because they would classify as dependents. Should any child conceived by anonymous sperm donation have the right to find their biological father and then collect SS benefits as that man's child after his death (provided the child was conceived while the biological father was alive) even though there was no dependent/provider relationship?

To the OP, I don't think that relationship existed between this man and his future children. I pay all kinds of premiums into various government programs and insurance policies, without choice. If I don't ever collect from an insurance policy that I've paid into or social insurance or EI or whatever, do I have the right to demand back all my contributions at the end of my life because I never used them? No way.

KimPossible's picture
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Simply put. Social Security Benefits are not in place and made available so that your spouse can have future children, nor would i ever support that being the case.

Joined: 05/31/06
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The twins didn't exist at the time of his death, they were simply frozen sperm.

I can see how an argument MIGHT be able to be made re: benefits from frozen embryos created before the time of death, but a batch of frozen sperm being called "dependents?" No way. That is an insane argument.

Joined: 08/17/04
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I would never support something like this. She actively chose to have those children after he had passed. If she was having financial hardships she should not have gone through with that. They are not entitled to survivor's benefits.

KimPossible's picture
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"GloriaInTX" wrote:

How would covering children of a father who paid that money in be a slush fund? It wouldn't be covering just anything. It would be providing for children with money that he paid in. You don't get money from social security unless you pay that money in.

Because its not for this purpose, Gloria. Its to help prevent hardship to dependants. Someone who is conceived after you have deceased is not your dependant!

Its just like if i were to die after all my kids were adults. Did pay money into the system? Yep, but they don't get to use it, they are now ineligable. Oh well!

Insurance works that way you know...you pay into it and may never use it.

boilermaker's picture
Joined: 08/21/02
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No way should these kids get survivor benefits IMO.

Social Security was originally intended as a safety net during the Great Depression-- not as a retirement plan for most people, nor intended to provide benefits to kids not even yet conceived.....that seems so crazy to me. Survivor benefits make sense to me for people already alive and dependent upon the worker.

This woman scraped the money together to impregnate herself after her husband's death-- she should have anticipated the costs of raising them, too.

I'm so glad I work for a "non-Social Security" employer. It means I don't pay into the system anymore (and that I'm not eligible for additional benefits.) We self-insure and don't rely on the government or an agency as our safety net. I prefer that.

And yep, we pay life insurance premiums every month and I hope to God that we never get to "use" them. I hope the same thing for my car insurance, my home owner's insurance and my umbrella policy.

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"boilermaker" wrote:

And yep, we pay life insurance premiums every month and I hope to God that we never get to "use" them. I hope the same thing for my car insurance, my home owner's insurance and my umbrella policy.

I'm trying to imagine a world in which I could just implant another kid every time I needed some more money as per our life insurance in the event of my spouses death and having frozen sperm banked.

No life insurer worth their salt would touch families utilizing any sort of reproductive technology. Talk about a pre existing condition ~ "Ability to reproduce unlimited children post death" would be a bit of a biggie, eh?

GloriaInTX's picture
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"Potter75" wrote:

I'm trying to imagine a world in which I could just implant another kid every time I needed some more money as per our life insurance in the event of my spouses death and having frozen sperm banked.

No life insurer worth their salt would touch families utilizing any sort of reproductive technology. Talk about a pre existing condition ~ "Ability to reproduce unlimited children post death" would be a bit of a biggie, eh?

Life insurance pays out a set amount so it wouldn't matter how it was divided up they still pay out the same amount. So I don't see how that would apply unless you have some kind of insurance I don't know about.

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"GloriaInTX" wrote:

Life insurance pays out a set amount so it wouldn't matter how it was divided up they still pay out the same amount. So I don't see how that would apply unless you have some kind of insurance I don't know about.

Not all policies are that vanilla. For estate planning purposes/ escaping estate taxes many people utilize life insurance trusts with their children as beneficiaries.

Joined: 04/12/03
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There's no way he paid enough in to the system to cover what we're talking about here. Two children and their care-giver? My SS benefits would be an incredibly small amount because of how little I've paid into it.

Not everyone qualifies for SS benefits. My nephew is legally blind. Perhaps when he is 18 he can get benefits, but for now, my sister and BIL do not qualify.

I think in order to receive the benefits you need to be alive at the time of the person's death. It's not really survivor's benefits if you aren't alive at the time of the person's death.

Now, I would think differently if the wife was pregnant at the time of his death, but they weren't even conceived yet.

I too am glad I don't pay into SS.

Oh, and as for life insurance, there are some reasons they won't pay out even if you are the beneficiary. And, I don't know for sure, but I would be willing to bet you can't name a person who does not yet exist as your beneficiary. (Although in a will you could specify any current and future children, but even then, it would be children who exist at the time of your death.)

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Yes, life insurance pays out a set amount and it can go to my kids that I have. I can't go back a year or two later and request more money because I used his frozen sperm to conceive again.

GloriaInTX's picture
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"Potter75" wrote:

Not all policies are that vanilla. For estate planning purposes/ escaping estate taxes many people utilize life insurance trusts with their children as beneficiaries.

Yes but it still pays out the same amount divided up over the number of beneficiaries so the insurance company wouldn't pay out any more.

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But you have to declare your beneficiaries. You cannot say....I like it to go to X when and if she/he is born.

Joined: 05/31/06
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All I'm saying is that it is weird that you are willing to open Pandora's box when it comes to declaring unfertilized reproductive material worthy of the benefits actual created living beings enjoy about social security benefits.

Its also weird to me that you are using the "he paid into it" argument. Would you also argue that women with limited resources seek to be impregnated with dead peoples sperm and then get WIC and welfare and other benefits because either they or the father theoretically at one point "paid into it"? Why just SS?

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"Jessica1980" wrote:

But you have to declare your beneficiaries. You cannot say....I like it to go to X when and if she/he is born.

Yet, many children who have lost their parent(s) need the life insurance funds immediately. In order to make sure that your children are able to use the life insurance proceeds in the way that you intend them to use the money, it is important that you:

  • Create a Trust: a trust may be created that names your children as beneficiaries. As with any other type of trust, you may make provisions that allow the trustee to distribute funds on behalf of your minor children. The proceeds of the trust may be transferred to your children when they reach an age that you specify. As with all types of trusts, the decisions that you make when setting up the trust will have significant tax and financial implications for your heirs.
  • Include Unborn Children: it is important that you do not exclude any children yet to be born from your life insurance policy if you think that there is a possibility that you might have more children. Your life insurance company can instruct you on how to make this designation. For example, you may be able to name your children of your marriage to John Doe as a group beneficiary. By not naming the children individually, you will include children yet to be born at the time that you complete the forms. If you chose not to do this then you should be sure to amend your life insurance beneficiaries upon the birth of each child.
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. An ILIT can be especially useful in providing for the future care of minor children, and even children yet unborn, when it utilizes professional management after the grantor’s death.

http://hbs.typepad.com/rick_ray/2008/06/advantages-of-a.html

Again, if reproductive material is going to be granted the rights of person hood, the implications could be huge.

GloriaInTX's picture
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"Potter75" wrote:

All I'm saying is that it is weird that you are willing to open Pandora's box when it comes to declaring unfertilized reproductive material worthy of the benefits actual created living beings enjoy about social security benefits.

Its also weird to me that you are using the "he paid into it" argument. Would you also argue that women with limited resources seek to be impregnated with dead peoples sperm and then get WIC and welfare and other benefits because either they or the father theoretically at one point "paid into it"? Why just SS?

Because SS is specifically paid out to children based on what the parent paid into it. If he didn't pay enough into it they wouldn't be eligible, and they are only eligible for a check that is based on the amount that was paid in. It is the same thing for unemployment benefits. If you don't pay in you don't get anything. WIC and welfare are based on need, and they can already get those even if they never paid a dime in taxes in their whole life so I don't see the comparison.

GloriaInTX's picture
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"Potter75" wrote:

Yet, many children who have lost their parent(s) need the life insurance funds immediately. In order to make sure that your children are able to use the life insurance proceeds in the way that you intend them to use the money, it is important that you:
  • Create a Trust: a trust may be created that names your children as beneficiaries. As with any other type of trust, you may make provisions that allow the trustee to distribute funds on behalf of your minor children. The proceeds of the trust may be transferred to your children when they reach an age that you specify. As with all types of trusts, the decisions that you make when setting up the trust will have significant tax and financial implications for your heirs.
  • Include Unborn Children: it is important that you do not exclude any children yet to be born from your life insurance policy if you think that there is a possibility that you might have more children. Your life insurance company can instruct you on how to make this designation. For example, you may be able to name your children of your marriage to John Doe as a group beneficiary. By not naming the children individually, you will include children yet to be born at the time that you complete the forms. If you chose not to do this then you should be sure to amend your life insurance beneficiaries upon the birth of each child.

All that does is set up how the money is paid out. If my life insurance is $100,000 they are going to still pay out $100,000 whether they pay it out a little at a time through a trust or in a lump sum, to 1 person or 10. The life insurance company doesn't care how many beneficiaries you have because they are still going to pay out the same amount. So I still don't get why it would matter to them if unborn children are included or not.

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"GloriaInTX" wrote:

Because SS is specifically paid out to children based on what the parent paid into it. If he didn't pay enough into it they wouldn't be eligible, and they are only eligible for a check that is based on the amount that was paid in. It is the same thing for unemployment benefits. If you don't pay in you don't get anything. WIC and welfare are based on need, and they can already get those even if they never paid a dime in taxes in their whole life so I don't see the comparison.

Unfortunately, they didn't exist when the parent died. Its really simple. The comparison is that they don't just burn up that money that might have gone to this dead mans unborn children, it goes to other children, who need it. If this Mother chose to have these children post death, she chose it on her own, and should shoulder it on her own. They are not survivors, they were CREATED post death with full knowledge that the spouse was dead and was not providing. SS is not like a debit account.

This case is a perfect example, however, of how anyone out there reading who has children and does not have a will is a moron, endangering your children. Their notarized statement means exactly nothing.

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"GloriaInTX" wrote:

All that does is set up how the money is paid out. If my life insurance is $100,000 they are going to still pay out $100,000 whether they pay it out a little at a time through a trust or in a lump sum, to 1 person or 10. The life insurance company doesn't care how many beneficiaries you have because they are still going to pay out the same amount. So I still don't get why it would matter to them if unborn children are included or not.

Yeah. Again, you cant compare a 100K term life insurance policy with a vehicle like an ILIT. I've had it explained to me, but still don't get it, and I'm certainly not going to pretend to be an estate planner or lawyer. I will just say that the number of beneficiaries can be fluid in these larger insurance vehicles, and they are in fact specifically set up to hedge bets and to include unborn heirs and to establish equity amongst them. If the courts rule that an uncreated person is due benefits given to existing people, it can have huge implications. I would bet no soldier would go to war without banking sperm. We could have generations of children born to dead soldiers receiving Vet benefits and the like. It just is illogical.

Joined: 04/12/03
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"Potter75" wrote:

Yet, many children who have lost their parent(s) need the life insurance funds immediately. In order to make sure that your children are able to use the life insurance proceeds in the way that you intend them to use the money, it is important that you:
  • Create a Trust: a trust may be created that names your children as beneficiaries. As with any other type of trust, you may make provisions that allow the trustee to distribute funds on behalf of your minor children. The proceeds of the trust may be transferred to your children when they reach an age that you specify. As with all types of trusts, the decisions that you make when setting up the trust will have significant tax and financial implications for your heirs.
  • Include Unborn Children: it is important that you do not exclude any children yet to be born from your life insurance policy if you think that there is a possibility that you might have more children. Your life insurance company can instruct you on how to make this designation. For example, you may be able to name your children of your marriage to John Doe as a group beneficiary. By not naming the children individually, you will include children yet to be born at the time that you complete the forms. If you chose not to do this then you should be sure to amend your life insurance beneficiaries upon the birth of each child.

It's unborn children at the time the policy is written. You can't bequeath anything to children who have yet to be conceived at the time of your death. I just can't imagine dividing up the estate and then having a baby conceived and born after the death of the father and trying to go back to the siblings and demanding back a percentage to go to the baby.

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"ethanwinfield" wrote:

It's unborn children at the time the policy is written. You can't bequeath anything to children who have yet to be conceived at the time of your death. I just can't imagine dividing up the estate and then having a baby conceived and born after the death of the father and trying to go back to the siblings and demanding back a percentage to go to the baby.

Not with all insurance. Picture multi generational trusts, not just a parent/child situation. And children born after death can absolutely receive benefits of such a trust. I just don't know enough about it to tell you how, other than the trustees bequeath that money to children born after death and try to do so in an equitable manner. You don't have to go back to a sibling and demand money "back" ~ generally you don't "have" but a portion of such a trust all at once anyway. The whole point of such a trust is that it ISN"T part of the estate, (or subject to estate taxes). The trustees job is very important, as it is on them to carry out the intended wishes of someone who is dead. If that dead person wanted ALL Of their grandchildren or children to receive benefits, not just those born while they were alive, it is very easy to accomplish.

Now, a very small percentage of people have such insurance policies. BUT, if the courts grant frozen reproductive bits the rights of survivors when it comes to SS, that sets a precedent for them doing so in every other area, which would include life insurance. So while that vanilla 100K policy NOW might be meaningless to kids created years after a death, how the courts rule on this could effect all sorts of things.

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"Potter75" wrote:

Not with all insurance. Picture multi generational trusts, not just a parent/child situation. And children born after death can absolutely receive benefits of such a trust. I just don't know enough about it to tell you how, other than the trustees bequeath that money to children born after death and try to do so in an equitable manner. You don't have to go back to a sibling and demand money "back" ~ generally you don't "have" but a portion of such a trust all at once anyway. The whole point of such a trust is that it ISN"T part of the estate, (or subject to estate taxes). The trustees job is very important, as it is on them to carry out the intended wishes of someone who is dead. If that dead person wanted ALL Of their grandchildren or children to receive benefits, not just those born while they were alive, it is very easy to accomplish.

Good point. I actually forgot all about this - it is how my mom's side of the family has their stuff (future generations are referred to as "issue" I think) and the subplot of The Descendents.

Now, a very small percentage of people have such insurance policies. BUT, if the courts grant frozen reproductive bits the rights of survivors when it comes to SS, that sets a precedent for them doing so in every other area, which would include life insurance. So while that vanilla 100K policy NOW might be meaningless to kids created years after a death, how the courts rule on this could effect all sorts of things.

I agree. the precedent would have unintended and unpredictable consequences.

Spacers's picture
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I'm with the Social Security Administration. Survivor benefits are for dependants who existed at the time of the wage earner's death. Any children conceived after the wage earner's death are no different than if the widow adopted a child after her husband died. She choose to have them and she should be prepared to support them with her existing resources.

AlyssaEimers's picture
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"Potter75" wrote:

This case is a perfect example, however, of how anyone out there reading who has children and does not have a will is a moron, endangering your children. Their notarized statement means exactly nothing.

Slightly off topic, but I am curious about this. If my husband and I were to die, would not everything we have not be divided equally between our three children? I admit to being ignorant in this area.

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"AlyssaEimers" wrote:

Slightly off topic, but I am curious about this. If my husband and I were to die, would not everything we have not be divided equally between our three children? I admit to being ignorant in this area.

If for no other reason, you should have a will/trust that names the person/people you have asked to raise your children if you should happen to die before they are adults.

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Its less about your money (though certainly that is crucial, especially if you you have explicit wishes or ages whereupon you want your children to have access to their inheritance etc, which is part of appointing a good executor, also done in your will.......then it is about appointing a guardian for your children. Without a will, your kids can (shockingly easily) end up, at least temporarily, in the foster care system. An ugly battle for their guardianship can ensue, or they could even be split up amongst relatives. It is irresponsible to not have an actual will (not an online document, even) in place as a parent of children.

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"AlyssaEimers" wrote:

Slightly off topic, but I am curious about this. If my husband and I were to die, would not everything we have not be divided equally between our three children? I admit to being ignorant in this area.

I agree with what the others have said about a will most importantly naming a guardian for your kids.

However, it is also worth mentioning that a financial advisor told us that a common mistake is to "give" your kids to someone and then lock up all your assets in trust for the kids, when more often than not the people who are raising your kids will need that money (for things like a bigger car, house, whatever). If you trust them with your children, then you shouldn't hesitate to give them your financial assets as well and trust them to be wise.

Spacers's picture
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"kris_w" wrote:

I agree with what the others have said about a will most importantly naming a guardian for your kids.

However, it is also worth mentioning that a financial advisor told us that a common mistake is to "give" your kids to someone and then lock up all your assets in trust for the kids, when more often than not the people who are raising your kids will need that money (for things like a bigger car, house, whatever). If you trust them with your children, then you shouldn't hesitate to give them your financial assets as well and trust them to be wise.

I disagree with the notion that anyone you trust with your kids, you should automatically trust with your money. We have people we'd trust with our kids but not our money, and also people we'd trust with our money but not our kids, but no one that we'd trust with both, at least not right now. Our trust is set up so the trustees will be able to pay out money to the guardians, as needed, for reasonable expenses related to our children. My sister did the same thing twenty years ago; her lawyer actually recommended keeping the two separate.

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Most good estate planners mandate a different executor than guardian. It just makes sense. Of course the executor is going to be acting in the best interest of the children and of the guardians, to ensure that the children have what they need, but that the parents wishes are also carried out. For instance, we have specific funds set aside for private school, but also specific instructions for certain schools that our children can and can't attend. If the guardians tried to send our children to a school on the "no" list, the executor would not release the funds to pay for the school, as per our wishes. There has to be some system of checks and balances to ensure the best outcome for both the guardians and children. A very small minority of people actually have trusts set up, most use executors. Its really only an issue when one is looking at an estate value over 3.5 Million dollars (currently, I think). There is no reason to have a trust with assets not subject to estate taxes, it would actually be a risky move with no value add.

AlyssaEimers's picture
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Thanks. Unfortunately, who would get our kids in the event of both our deaths is something that DH and I just can't seem to agree on. There is no one in our families who shares our same values when it comes to child rearing. I know they would be loved and cared for, but there is just no one who would raise them how we would want them to be raised. I do know that we just need to pick someone, but it is hard.

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You'd risk them going to foster care before family? It may be hard, but imagining the alternative is a heck of a lot harder for me.

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"AlyssaEimers" wrote:

Thanks. Unfortunately, who would get our kids in the event of both our deaths is something that DH and I just can't seem to agree on. There is no one in our families who shares our same values when it comes to child rearing. I know they would be loved and cared for, but there is just no one who would raise them how we would want them to be raised. I do know that we just need to pick someone, but it is hard.

Unless you die at the same time, the last one to die would make that decision.

In the event you both died at the same time, I'm guessing you can both agree you would want your children to remain together. In the foster system, siblings frequently get separated due to age and number. I looks like you have 3 beautiful daughters. Not every foster family can foster 3 at a time.

It's definitely a tough decision to make. But if you make it ahead of time it will be that much easier on your children if it ever happens. Growing up, my sister and I knew who we would go live with in the event of our parents' death. It was reassuring knowing what would happen to us.

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"ethanwinfield" wrote:

Unless you die at the same time, the last one to die would make that decision.

In the event you both died at the same time, I'm guessing you can both agree you would want your children to remain together. In the foster system, siblings frequently get separated due to age and number. I looks like you have 3 beautiful daughters. Not every foster family can foster 3 at a time.

It's definitely a tough decision to make. But if you make it ahead of time it will be that much easier on your children if it ever happens. Growing up, my sister and I knew who we would go live with in the event of our parents' death. It was reassuring knowing what would happen to us.

Not necessarily true as it may vary from state to state. If both parents write separate wills giving guardianship to different people, the court may decide. If the last parent passes and names someone to be guardian of the child, family members can contest the appointment and take them to court to dispute the decision. My sister passed away and has appointed someone as guardian in the event they passed away. If her DH's final will states someone different, both sides of the family can contest the decision and bring it to court. Even if both parents pass away and named a specific person to be guardian, family can always challenge that decision. It may be tough to prove that they're better fit than the person in the will, but they have the right to challenge the will.

Joined: 06/04/07
Posts: 1368

"Potter75" wrote:

It is irresponsible to not have an actual will (not an online document, even) in place as a parent of children.

Is this for your state? My attorney has stated that even written at home is valid as long as it is notarized under our state laws.

Joined: 12/10/05
Posts: 1681

"Spacers" wrote:

I disagree with the notion that anyone you trust with your kids, you should automatically trust with your money. We have people we'd trust with our kids but not our money, and also people we'd trust with our money but not our kids, but no one that we'd trust with both, at least not right now. Our trust is set up so the trustees will be able to pay out money to the guardians, as needed, for reasonable expenses related to our children. My sister did the same thing twenty years ago; her lawyer actually recommended keeping the two separate.

No, I still think that if I couldn't trust someone to do the best for my kids with my money, then I wouldn't trust them with raising my kids. period.

Fortunately, we have someone who fits the bill perfectly.

wlillie's picture
Joined: 09/17/07
Posts: 1796

I wouldn't trust the person we're leaving our kids with their entire inheritance. She would spend it on the kids, but would run out pretty fast if she was given a lump sum all at once; she loves buying the kids things. I 100% trust her to raise them as close to what we would have, but only 50% trust she'd share them properly with my family, so probably going to add something about school vacations into the will too.

Dh's money goes into a trust for college (or when they reach 25) and I haven't updated mine, but I think after we have this next baby, we'll set up a second trust that will pay a yearly "allowance" that would be what she'd make working full time at minimum wage or something similar.

Joined: 05/31/06
Posts: 4780

"kris_w" wrote:

No, I still think that if I couldn't trust someone to do the best for my kids with my money, then I wouldn't trust them with raising my kids. period.

Fortunately, we have someone who fits the bill perfectly.

I simply wouldn't want them to have the pressure of managing the money ~ the people who get our kids will be busy enough taking on three more children, protecting and managing the portfolio should be left to a professional. Its always better to have more advice, then less, when it comes to money, IMO. I don't understand how a system of checks and balances could ever be a negative thing.

AlyssaEimers's picture
Joined: 08/22/06
Posts: 6561

"Potter75" wrote:

You'd risk them going to foster care before family? It may be hard, but imagining the alternative is a heck of a lot harder for me.

I have not heard of this happening. I do know that we need pick someone.

"ethanwinfield" wrote:

I looks like you have 3 beautiful daughters. Not every foster family can foster 3 at a time.

Thank you. Even in our family, if something happened to both of us I think they would end up separated in that everyone either does not want children or already has several children. It is very heartbreaking. Everyone would take 1, not sure who would take 3.

"Beertje" wrote:

Not necessarily true as it may vary from state to state. If both parents write separate wills giving guardianship to different people, the court may decide. If the last parent passes and names someone to be guardian of the child, family members can contest the appointment and take them to court to dispute the decision. My sister passed away and has appointed someone as guardian in the event they passed away. If her DH's final will states someone different, both sides of the family can contest the decision and bring it to court. Even if both parents pass away and named a specific person to be guardian, family can always challenge that decision. It may be tough to prove that they're better fit than the person in the will, but they have the right to challenge the will.

I have heard of this as well. My MIL point blank told me that if we willed our children to someone outside the family she would take it to court and fight it.

AlyssaEimers's picture
Joined: 08/22/06
Posts: 6561

I also wanted to add that this is one of the many reasons I had my tubes tied after 3 children, even though I would have loved to have more.

Joined: 05/31/06
Posts: 4780

"Beertje" wrote:

Is this for your state? My attorney has stated that even written at home is valid as long as it is notarized under our state laws.

mmmhmmm. I could also take a hammer and nails and build a valid crib at home, but would not trust it to keep my children safe at night. So I bought one that is safety tested and approved. I would never, ever trust either my estate or my children to some homemade will. Crib manufacturers and safety standards exist for a reason, so do attorneys and estate planners. I don't do anything slapdash when it comes to my kids, just not my style. Its well worth the cost to do it right and have peace of mind, for my husband and I.

Joined: 12/10/05
Posts: 1681

"Potter75" wrote:

I simply wouldn't want them to have the pressure of managing the money ~ the people who get our kids will be busy enough taking on three more children, protecting and managing the portfolio should be left to a professional. Its always better to have more advice, then less, when it comes to money, IMO. I don't understand how a system of checks and balances could ever be a negative thing.

Not negative, just sometimes un-needed. My sister and her DH have agreed to take our kids (all 5 of them) if, God forbid, something ever happened to us. They will also get both our houses and life insurance payouts. I trust them 100% to do best for my kids. Whether that means move to our house, sell everything and buy something else that fits everyone (I imagine they will one day have kids of their own and will need a big, big house). They know our wishes for schooling and are on the same page as us as far as financial principles. I guess were really fortunate to have that peace of mind.

"Potter75" wrote:

mmmhmmm. I could also take a hammer and nails and build a valid crib at home, but would not trust it to keep my children safe at night. So I bought one that is safety tested and approved. I would never, ever trust either my estate or my children to some homemade will. Crib manufacturers and safety standards exist for a reason, so do attorneys and estate planners. I don't do anything slapdash when it comes to my kids, just not my style. Its well worth the cost to do it right and have peace of mind, for my husband and I.

Agreed. I want bullet proof documentation regarding guardianship of my kids. It is pricey, but money very well spent!

mom3girls's picture
Joined: 01/09/07
Posts: 1535

We also have 2 differant people in line for our kids, one to take the kids and one to take care of the money. I want my brother to be able to focus on growing the kids and my FIL will take care of the money, hopefully growing that too. I just think of it as a checks and balance too.

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