What if something bad happens to the beneficiary of your will? | Sykes Elder Law Blog

Certified as an elder law attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court

Certified as an elder law attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court

You’re having your Last Will and Testament prepared, and you’ve decided on the beneficiaries who will inherit your estate.

Good job! I always say any planning is better than no planning.

To have a great estate plan, though, I urge you to consider what might happen to your beneficiaries. Murphy’s Law (If something bad can happen, it will happen) may be a cliché, but it’s not always wrong. Here are some possibilities to consider:

1. A beneficiary dies. For example, your will leaves your estate to your children but one of them dies before you do. If you don’t specify what happens next, Pennsylvania law provides that the share for the deceased child will pass to his or her surviving children.

If you like that result, go ahead and specify that’s what you want to have happen. It never hurts to make your intentions clear.

On the other hand, you may not care for Pennsylvania’s default result. Perhaps you would rather have the share of a deceased beneficiary go to the surviving beneficiaries you have named, or to the deceased beneficiary’s spouse. Whatever your preference, state it clearly so that there is no confusion.

For every beneficiary you name, think through what should happen if that beneficiary dies before you do, and state your intentions in your will.

2. A beneficiary gets divorced. With divorce rates in the United States hovering around 50%, this is a significant possibility to consider.

In many states, like Pennsylvania, inheritances do not count as marital assets that need to be divided in the case of divorce. But even in a state with such a favorable law, inheritances have a way of becoming mingled with other assets and hard to separate out.

One common use of an inheritance is to pay off the mortgage of the marital residence. Years later, when the divorce occurs and the house has increased in value, the increase in value may well be considered marital property that must be split up.

If you are concerned about a beneficiary’s divorce potential, consider leaving that person’s inheritance in a trust, rather than an outright gift of money. With the right drafting, the trust can provide for the beneficiary with a minimum of hassle, while still providing powerful protection if a divorce occurs.

3. A beneficiary becomes disabled. Your beneficiaries may all be fine now, but what happens if an accident or illness renders someone disabled? It is not at all uncommon.

An outright inheritance to a disabled beneficiary could cause problems. If the beneficiary receives means-tested disability benefits, like Supplemental Security Income (SSI) or Medicaid, an inheritance could throw the beneficiary off benefits until the money is spent down.

In other cases, such as those involving a cognitive impairment, the beneficiary may not be able to handle large sums of money and may lose the inheritance or spend it unwisely.

Authorizing the executor of your estate to create a special needs trust in the event a beneficiary is disabled can be an effective way of anticipating this contingency. Your situation might call for that, or for a different plan.


These are just a few of the more common possibilities to consider. The best advice is to work with an experienced estate planning or elder law attorney when you draft your will so that you can receive expert guidance on how to plan for contingencies.

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