From the 54th Annual Hawaii Tax Institute, 2017

Bruce S. Ross, Esq.
Mediation Office of Bruce S. Ross, LLC
Los Angeles, CA

Eileen F. Gallo, Ph.D.
Gallo Consulting
Los Angeles, CA

I. INTRODUCTION

The purpose of this Article is to acquaint estate planning professionals with the underlying psychological aspects of relationships among siblings (be they birth, half-, step-, or adopted)  and how those relationships affect the siblings' relationships with one or more sets of parents in the estate planning and succession process.  The authors, a psychotherapist and a lawyer, believe that lawyers involved in estate planning can inform and improve their counseling functions in dealing with parents, children and families with a basic understanding of the psychological aspects of sibling relationships in both birth and blended families.  This Article will first discuss some of the basic psychological principles involved in the analysis of sibling relationships and how those relationships may play out in siblings' interactions with their parents in the estate planning process.  We follow this discussion with three Case Studies based on actual sibling-focused estate planning matters and pose two sets of questions, the first psychologically oriented, the second oriented toward legal and ethical issues, all of which will be discussed at the oral presentation.

“Our brothers and sisters are with us from the start of life to its finish.  Through them and with them, we come to know both the beastliest and the very best that lurks within each of us."
Susan Scarf Merrell, The Accidental Bond, p. 280 (Ballantine 1995).

“We love, we fight! 
We feel proud, we envy!
We support, we differ!
And whenever we have reason to 
celebrate, we are together.
Yes, we are siblings!"

         Pankaj Gupta



II. SIBLING RELATIONSHIPS

The sibling connection is our longest lived relationship (assuming  we outlive our parents).  The early sibling laboratory provides an environment where sisters and brothers can teach each other how to get along – or not.

Siblings come in various forms – siblings by birth, step siblings, half siblings and adopted siblings.  Many siblings enter the family constellation as a result of loss – divorce or death among them.  As professionals providing estate planning services, it is vital to be mindful of the reality that you are or will be discussing topics  that are extremely stressful – loss and/or anticipated loss.

Several commentators on family constellations observe that (especially) loss of the last parent brings the siblings back to the nursery and many of the old issues come up – primarily vying for love and vying for material goods.

“My sibling doesn’t matter. . .”
“We have nothing in common. . . .”
“I’m like this, she’s like that. . .”
“He is my best friend. . . .” 

Each sibling contends with the three themes of Competition, Cooperation and Comparison (the Three C’s) in his or her unique manner.

Issues of money and varying levels of achievement can have a significant impact on sibling relationships.

Dr. Gallo’s doctoral dissertation examined the Psychological Impact of Sudden Wealth.  She interviewed recipients of sudden wealth to explore their adaptation to the unexpected acquisition of $1,000,000 or more under circumstances that made a (potential) material change in the person’s lifestyle.  

The issue of sibling relationships was not addressed in the dissertation’s Structured Interview Guide nor in the Research Questions.  Nevertheless, most of the participants involved in the study spontaneously raised the issue of the impact of their wealth on their relationships with siblings.

One participant with several siblings reported that her wealth exacerbated tensions between herself and her siblings, who refused to provide financial assistance for their aging, ailing parents and expected her to become the parents’ sole source of financial support.  During the interview she observed that “if parents haven’t done a good job working on family relationships, it (money) can make matters worse.”  Representative comments concerning sibling relationships included:

“Their behavior makes me not interested in having relationships with them.”

“Some of them think I should be supporting my ill brother.”

“The tendencies people [my siblings] had were made clearer.  That clarity made it painful and very obvious.”

“My brother and I have reacted very differently to the money.  He’s into the flash of it, the materialism, and that makes us further apart than before.”

“Right now there is a breakdown in communication among us.”

“My siblings and I have had a problem with it.  We’re not as close as we used to be.”

“There is an undercurrent of expectations – why wouldn’t I just give my [sibling] $50,000 and end her suffering?”

“My sister was always a jealous person.  This just made it worse.”

“One of my siblings wanted to split my check equally among all of us.”

“My brother needs this.  My sister needs that.  I can sense a dependency with them.”

“I love being able to help my family and my siblings and bring some joy to their lives.”

Issues surroundings inheritance, caring for elderly parents, fairness, equity and succession often drive wedges between parents and between brothers and sisters.

Do individuals feel shortchanged or superior because of differing levels of accomplishment, intellectual competence, social skills, physical attractiveness and/or financial security?

III. CASE STUDIES    

Stan and Pamela
Stan, 75, and Pamela, 70, have been married for 35 years.  It is a second marriage for Stan, the first for Pamela.   Stan has three children by his first wife, Portia, who passed away in 1976 when all three children were young.  The children are Bonnie, now 50, Sam, 48, and Penny, 47.   Stan and Pamela have two children of their marriage, Ethan, 32, and Jacob, 30.  All of the children are professionals; Sam, in particular, is a highly successful attorney and real estate investor.  Stan, "in his heart of hearts," has five children; Pamela is partial to her younger sons who are in the early stages of their careers.  Stan and Pamela come to you for estate planning advice.  How do you proceed? 

Jay and Hannah
Jay, 50, and Hannah, 44, have been married for 15 years. They have three minor children, Zeke, 14, Joshua, 12, and Mike, 8.  Both Jay and Hannah are successful and well-off.  Each has a brother, much less well off, and both Hannah and Jay complain that their respective brothers are lobbying their parents (both sets wealthy in their own right) for far greater shares of the inheritances expected upon the death of the parents.  The families have been engaged in discussions about these issues, and Jay and Hannah come to you for help.  How do you proceed? 

Ellen and Joe
Ellen, 64, and Joe, 68, have been married for 24 years.  It is a second marriage for both.  Ellen has one son, Keith, 34, by her first marriage.  Keith’s birth father died and Joe has adopted Keith.  Joe has two children by his first marriage, Vanessa, 41, and David, 38. Joe consistently says he has three adult children; Ellen refers to one adult child and two adult stepchildren.  Unlike the other two siblings, Keith has only one line of inheritance – Ellen and Joe.  The couple has converted all of their property into community.  They come to you for estate planning advice.  How do you proceed?

IV. QUESTIONS FOR DISCUSSION

A. Psychologically oriented questions

Keeping in mind that sibling relationships can change completely over time – from hostile cutoff to rapprochement, potential questions could be:

1.  What is the goal?  Is it resolution or further refinement of conflict or justification of positions?
2.  Is there a gap or is it a chasm?  Can the difference be bridged
3.  Is there a rift or is the relationship thoroughly toxic?
4.  When did the divisions begin?  Why?
5.  People are not perfect.  Is your sibling good enough?  
6.  What do you think?  Could you and your sibling/siblings benefit from consultations with professionals or psychotherapy?

B. Legally and ethically oriented questions

1.  Who is Your Client?
a.  Parents
b.  One sibling
c.  All siblings
d.  The "family"

2.  After answering the above, define the engagement, its nature and scope.
a.  Commit the engagement to writing.
b.  Insure, preferably in writing, that non-clients with whom you are involved understand that you are not representing them.

3.  Discuss "communication" among the affected family members, its scope and limitations.  See, Jane Bryant Quinn, “Talk About Inheritance To Keep Peace”, Washington Post Writers Group (1999), attached as “Appendix”.
a.  Insure the parties involved understand the implications of confidentiality of communications and the attorney-client privilege.
b.  Discuss the role of written documents and other communications in writing.

4.  Consider your own role.
a.  Is it as scrivener of the clients’ intentions?
b.  Do you serve a counseling function?  
c.  Do you assist the clients in deciding what is "fair," what is "equal", what is "appropriate"?

5.  Authoritative Source Material

Exhibit “A”, Commentary to Model Rule 1.2, “Scope of Representation and Allocation of Authority,” The ACTEC Commentaries on the Model Rules of Professional Conduct (ACTEC Foundation, 5th Ed. 2016), pp. 35-41.

Exhibit “B”, Commentary to Model Rule 1.6, “Confidentiality of Information”, The ACTEC Commentaries on the Model Rules of Professional Conduct (ACTEC Foundation, 5th Ed. 2016), pp. 78-86.

Exhibit “C”, Representation of Multiple Members of the Same Family Other Than or in Addition to Spouses,” The ACTEC Model Engagement Letters (ACTEC Foundation, 3d Ed. 2017), Ch. 2, pp. 21-30.

V. CONCLUSIONS

“All children are bent out of shape (or, more accurately, into shape) in their early significant relationships, and this is a result neither of inherent bestiality nor of faulty parenting, but of the inevitable conditions of early life.” Mitchell, S.A., Relational Concepts in Psychoanalysis:  An Integration (Harvard Univ. Press 1988)


APPENDIX

Jane Bryant Quinn
On Personal Finance
December 12, 1999

Talk About Inheritance to Keep Peace

Washington Post Writers Group

If you’re writing a will, what will help your family the most (aside from the money, of course)?  Leaving them at peace, rather than riven by the way you divided the property.

Your children have issues you don’t know about, and that they barely understand themselves.  Their rivalries go back to childhood: resentments over family position, closeness to parents, “good son” and “bad son.”  Fights over property-even little things, like a rug or a toaster-reflect fights for dominance.

The AARP Investment Program from Scudder recently surveyed Americans 50 and older.  One in five said that an inheritance - or lack of one - caused hard feelings among family members.

Rivalry was the lowest among people 70 and up.  However, among the oldest Baby Boomers (age 50 to 53), fully one-third reported discord.  They’re still young enough, or needy enough, to want to fight.

Most of the fights involved money.  But 47 percent of families warred over jewelry or other heirlooms, 43 percent about a house, 31 percent about other real estate and 11 percent about investments.

Tensions generally arose because some family members thought the division of property wasn’t fair.  Nearly half suspected that unfair pressure was brought on the parent, to tip the inheritance toward or away from one of the heirs.

The best approach is to tell your children, now, how the money will be divided and why.  Of the families that reported “no conflict” to the AARP, 63 percent said they knew what to expect in advance, and 82 percent said they thought the division was fair.  

Even unequal divisions of property can be perceived as fair, if all the children agree.

“It’s also important that all the children get at least some money, even if it’s less than the others get,” says Michael Chasnoff of Advanced Capital Strategies in Cincinnati. 

You might minimize friction by dividing the heirlooms equally, or give more of them to the children who will otherwise inherit less.

Heirlooms matter a lot, including those of purely sentimental value.  Families can fall out as much over little things as big ones. 

Wise parents talk with their children, over months or years, about which heirloom each wants most.  Gradually, they let everyone know what “belongs to whom.  That doesn’t always guarantee peace, but it helps a lot.

Parents should be especially clear in families where there’s a second spouse and stepchildren.  The “first family” children usually worry that the second spouse will cut them out-especially if that spouse remarries after you die.

So think about leaving those children some money in trust.  Typically, the spouse gets income from the trust; the children get the principal, when the spouse dies.

Think twice, no thrice, before leaving two or more children a share of a vacation home.  Inevitably, they won’t agree on how to manage the property.  Does the living room need new furniture?  Should they add a porch?  Is it too expensive to fix the driveway?

One child may be bossy, one child may not have the money for upkeep, one child may live too far away to use the house.

Another issue is the family home, especially if one child is living there, taking care of you.  If the home is the principal asset, everyone might agree that the child in the residence should inherit an extra share of the proceeds of the sale, to help him or her buy something else.

Chasnoff suggests that you leave each of your children a letter.  “Talk about your own values, and what you admire about that particular child,” he says.  A loving letter that makes a child feel loved is perhaps the finest legacy you can leave.