When the media went into a frenzy this week over revelations of Arnold Schwarzenegger’s love child, I told myself I wouldn’t waste time following the story. But every time a news item appeared on the TV or radio, I was riveted.
I’ll try to redeem myself by letting it be the inspiration for a serious discussion about the estate planning ramifications of having a child out of wedlock. Since I pretended to give advice to Maria Shriver last week, it seems only fair.
The issue about “issue.” Wills, particularly those based on will forms used by lawyers, frequently use general terms such as “issue,” “descendants,” and “my children” to identify those who will inherit. Depending on the exact wording of the will, the jurisdiction where you die, and who does the interpreting, such a general term may or may not include a child born out of wedlock.
So if Arnold had died a year ago and his will left some funds to vaguely described “issue” or “children,” Maria and her kids could have been surprised to find out the funds would need to be divided five ways instead of four.
Or perhaps Arnold might have phrased a general term in a way he hoped would include his love child, only to have the courts rule that it applied only to the children of his marriage. Looking on from the afterlife, Arnold might think that was a raw deal and wish he could travel back through time to redo his Last Will and Testament.
News coverage shows that Arnold has apparently provided well for his additional son. Presumably Arnold would want to provide for him after death as well. If that is indeed the case, Arnold should name that son specifically and spell out exactly what provisions he wishes to make.
But being specific raises a challenge in Arnold’s case. Until recently, his wife and children knew nothing about the other child. Morality issues aside, how do you keep an illegitimate child’s existence secret so that you can maintain your marriage and seek political office, but still make specific provisions in your will for that child? Which brings me to my next topic…
Husband/wife conflict. Those of us who counsel married couples in estate planning advise our clients that a husband and wife may have conflicting interests. If so, they need separate legal counsel. In most marriages, husband and wife see things the same way, are content to waive any possible conflict, and want to avoid the expense of hiring separate lawyers.
But in Arnold’s case, he would have needed his own lawyer for the past 14 years if he desired to make specific provisions for his out-of-wedlock son without revealing anything about it to his wife.
How he would have explained his need for secrecy to Maria is another matter. If she had known, you can bet she would have said “Hasta la vista, Baby!” a lot sooner.