Estate Planning attorneys understand that a revocable trust protects their clients’ privacy in death. Few but high profile clients share this understanding of how the use of a revocable trust can protect their privacy.
The Will of Elizabeth Edwards, the late, estranged wife of former Sen. John Edwards, is a case in point. She prepared a new Will on December 1, 2010. She died less than one week later, on December 7, 2010. The Will was filed in the court on December 22, 2010, shortly before the holidays. Right after the holidays, on January 5, 2011, the Will was posted on the internet for the whole world to see.
It’s probably not a surprise to anyone that she left her personal property to her children rather than to her estranged husband. But, we may never know how she disposed of most of her assets because the Will poured over to a revocable trust. In fact, it appears she restated the trust just prior to the will and then did a new Will to pour over into the newly restated trust. (States may vary regarding the ability of a Will to pour assets into a trust which is altered after the execution of the Will.)
While news stories drew conclusions regarding Elizabeth’s disinheritance of John in the Will, we know the true story: We do not know if she disinherited him. The only disposition we have knowledge of is the disposition of her personal belongings to her children. Since the remainder of her assets were all left to her revocable trust, we have no idea to whom she left those assets.
Of course, since John and Elizabeth are still married under North Carolina law, he would have a right to elect against the Will and receive his intestate share. The fact that they are estranged would not ordinarily alter these rights.
In life, Elizabeth’s privacy was significantly reduced due to John’s public life as a politician. Then, Elizabeth allowed glimpses into her life and her valiant struggle with breast cancer. Elizabeth’s trust preserves some privacy for Elizabeth, at least in death. If Elizabeth’s trust did not make provision for John, we’ll have to wait to see whether he exercises his right to elect against her Will. Of course, if he does so, it would be in a public proceeding. Thus, John’s exercise of his right of election would thwart the privacy which Elizabeth chose to preserve.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
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