Question: I am 79 years old and have been married three times. I have two children by my first wife (who died in childbirth), two by my second wife (who died of cancer), and one by my current wife who is 60. We have been married for 16 years. Although they seem to have forgotten that I have educated all of them and given them nest eggs, my four older children (now 51, 43, 32, and 29) are jealous because they think I am going to exclude them or not treat them “fairly” when I die because of my wife and youngest (now 15). Since my wife does not work and since there must be enough to support her and my son and to educate him, I believe it is essential that she receive the bulk of my estate in trust or otherwise. I am concerned that my older children will contest my will by saying that I am an old man who is being influenced by my younger wife. I want to avoid putting my wife through this. I have heard that I can put penalty clauses in my will to prevent a contest. Is that correct?

Answer: As more Americans marry multiple times, have children by more than one spouse, and raise “blended families,” issues similar to those you describe will occur more often. While penalty provisions (called “in terrorem” clauses) can be placed in wills as a perceived way to stop a contest, in truth, these clauses are of little practical effect unless tied a significant inheritance that will be lost if a beneficiary contests the will. Bottom Line: Disinheritance without a monetary incentive not to contest a will is as fruitless as putting a gelding into a pasture with a dozen mares. And to make matters worse, some states permit contests despite this language.

What to do: Find a lawyer who will help you begin a creative plan now. 1) If you don’t have long-term care insurance (and if you can afford it), buy it now as, should you or your wife be stricken with a long-term, chronic illness, you may not have anything left to pass on to your beneficiaries. 2) If you have the assets available, find out about a Section 529 educational plan or prepaid tuition plan in your state for your youngest child now as you can make a substantial contribution now to help with his education . 3) If you have a taxable estate, make sure your lawyer advises you and your wife about the taxation issues in relation to the new legislation which became effective January 1, 2002. 4) Consider equalizing your assets by making sure that your wife owns title to one-half of your assets in order to maximize the advantages of the marital deduction. There is no tax liability involved when you gift assets to your spouse. 5) Although we do not normally recommend them, consider using a revocable living trust that will remove your assets from your probate estate – even though this may not avoid a challenge. 6) Since you are concerned that a contest will be based upon allegations that you are in some way mentally incapacitated, get examined by a neurologist and psychologist, get written reports saying you have all of your faculties, and attach these certifications to your will and other estate planning documents. 7) Since you believe your older children’s intentions are clear, consider letting them know now exactly what you are doing. In this way, you may just take the wind out of their sails.

Next Week: Due to reader interest, more about what are referred to as ‘in terrorem” clauses next week.