Estate planning is all about drafting legal documents that factor in a clients' unique goals, familial situation, and assets. Each and every word in these documents carries a tremendous amount of power, and therefore responsibility. The words written in Wills and Trusts are often enforced or litigated years or decades later, many times after the client has died. The more precise and unambiguous the language is, the easier it is for judges and courts to interpret the document correctly (how the client intended).
You'd be surprised by how often even the most ordinary words can create confusion in the eyes of the court. Everyday words can have multiple meanings, which could easily mean a difference of millions of dollars to the parties involved. For example, it is not unusual for a Will or Trust to have a provision to provide benefits to a client's spouse. But, to which spouse is the document referring? Dictionary.com defines a spouse as "either member of a married pair in relation to the other; one's husband or wife."
In a recent Texas case, the courts found that the term "spouse" was indeed unambiguous but held that "spouse" applied to a beneficiary's ex, to whom they were married at the time. In other words, the beneficiary was married at the time when an irrevocable trust was created. The beneficiary later divorced and remarried. The courts held that because the beneficiary was married at the time when the trust was created, the term "spouse" referred only to his spouse at the time it was created, despite them having later divorced.
What could the client have done? Instead of using the term "spouse," the client could have instead referred to their spouse by name. Alternatively, the trust could have used language such as "my spouse at such time" or "my spouse, but only if married to and not separated from at such time."
The bottom line is that words matter. Whenever someone is named in an estate planning document, it must have the appropriate provisions in place to account for divorce or remarriage. Not being 100% clear only allows a judge to make a decision based upon their interpretation of your document. The best way to avoid costly and irreversible mistakes is to have your documents drafted by an experienced estate planning attorney who understands the implications of nuance in estate documents.
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