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My sister-in-law is a horrible person, and I was wondering what would happen if my brother passed away after my parents' will was already executed. In the event my brother passed first, it's obvious I would be the sole heir. However, if my parents pass first and their will was distributed to me and my brother and then my brother passed after them, can my parents add a clause to their will to deny his wife any part of the estate? If he had children, I'm sure they'd want it to go to them. However, if he didn't have children, can a clause be added to have it go back to me? She's entitled to 1/2 their accumulated assets during the marriage, but is there any way to deny her anything related to my parents' will?

  • Are you asking if the property can be "clawed back?" Your brother inherits 1/2 the estate and he dies some time later; are you asking if that property your brother inherited can then be given to you? How long would your brother have to survive your parents before the property would be inheritable by your sister-in-law? Or, are you looking for a forever claw-back? – Dave D Dec 7 '19 at 17:22
  • Yes, something along those lines. Is there any way to guarantee she never sees the estate? If he has kids, I could be the executor until they come of age, or if he never has kids, it's passed back to me. – user27343 Dec 7 '19 at 18:58
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They might need to do this via a trust rather than a bequest.

Someone I know has a trust from their parents that says they can use the money during their life for their needs (and lists a fairly comprehensive set of examples) and upon their death the remainder goes to their children. I think you can has some control over what happens to your money after you die.

I think your parents could leave your brother's portion to him via a trust that provided for him to use the money during his life but had the remainder go to his children. As someone said in answer to that other question, if money is left to your brother in their will, it is his at that point and he can leave it to his wife or to his dog if he likes.

Their attorney may be able to structure a trust that solves the problem.

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  • Thanks. So even if my parents specifically add a line to the will that it can never go to his wife or that there are restrictions on how the money can be used, it won't work? Wills cannot do that? However, you can structure a trust in a such way? – user27343 Dec 7 '19 at 19:24
  • That is my understanding – George White Dec 7 '19 at 19:43
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In some jurisdictions, certain relatives cannot be disinherited without their consent (e.g. in community property states, your wife's right of inheritance is independent of any will). Daughter-in-law is not one of the statutorily-protected relations. So, in will, a parent can distributed their property as they see fit -- all to sister 1, split evenly between the brothers, split evenly between oldest son and oldest daughter, and so on. They can explicitly include a daughter-in-law if they want; they can include me if they want. Nobody gets a share if they are not mentioned.

A will can have conditions, e.g. "all to my wife, but if she dies before me, all split evenly among children A,B,C,D". The hard part if for the testator to decide on / think about a hierarchy, such as "Wife first; if wife dead, oldest female child; if oldest female child dead then children of oldest female child...". Painful statements like "Person X shall in no circumstance receive any portion of the estate" indicates testator's intent, and following the testator's wishes (hence "will") is the basic principle of inheritance law.

It's certainly possible to write a will, especially if it is really simple. Attorney's generally do not charge a huge sum to write this sort of stuff up. What you really need is to figure out in advance is what you want the will to do.

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  • This will not let a person leave money to a son and then restrict the son not to leave it to his wife. Once the son inherits outright, it is his. – George White Dec 7 '19 at 19:46
  • Indeed: OP was not at all clear that he had in mind a claw-back provision. There is no means of preventing the sister-in-law from accessing the money, if the brother can also access it: not even with a trust. – user6726 Dec 7 '19 at 19:52
  • The OP wants a way that the sister-in-law never gets her hands on the money. If it is left in a trust to the brother to get the income during his life with the principle going to the children upon his death, the sister-in-law doesn't get the principle. – George White Dec 7 '19 at 20:03
  • But the brother also does not ever get his hands on the principle, and the sister can still access the interest. So it depends on whether the parents want to partially disinherit the brother but still give outright ownership to the other siblings; do they want a clause to give the brother the principle in case he divorces horrible wife (problems with an "and never remarries her" clause). – user6726 Dec 7 '19 at 20:11

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