Bill, a 64-year-old husband and father of four, picks up a call from his sister. After some small talk, the tone of his sister’s voice changes notably. She’s got something to say but doesn’t quite know how to say it.
Finally, she asks “Do you remember Sally Green?”
Bill’s mind files through his Rolodex of family and friends.
“Yes, I dated Sally during my freshman year of college,” he says.
“Well, Sally has a daughter,” says his sister, information that would forever change Bill’s life.
Genetic Testing Changes More Than Our Family Trees
Genetics are a powerful thing and the increasing accessibility to genetic testing is changing more than our family trees. Bill never took a DNA test, but his sister did as part of their family’s ancestry research. It was Bill’s sister’s DNA that connected Sally Green’s daughter, Jenny, to Bill. Jenny was perplexed when Bill’s sister came up as a direct DNA match on a popular genealogy website they were both members of.
While neither of them could figure out who the mutual connection was that linked their DNA, the pieces of the puzzle finally came together and it was confirmed that Bill was Jenny’s father. Bill and Sally had dated in college but Sally kept a secret for more than 40 years, never informing Bill she had become pregnant and given birth to his child.
Family Under the Law
Bill’s story is just one example of how the prevalence of DNA testing and the expansive online databases created from that testing is reshaping the way we define family under the law. Under Michigan’s Estates and Protected Individuals Code (EPIC), with few exceptions, an individual is the child of his or her natural parents, regardless of their marital status.
It is establishment of the parent-child relationship which in turn dictates inheritance under Michigan law. This is the case for both individuals with and without any estate plan in place.
For those individuals who die without a will or other planning in place to direct distribution of their assets, Michigan’s intestate succession laws will do it for you. Under Michigan law, without a will, your assets are directed to be distributed in an order of priority structured in a way to first provide all or a portion to your surviving spouse, then to your “descendants.”
Under EPIC, the definition of a “descendant” means those individuals with the relationship of parent and child at each generation. In Bill’s case, since he is the natural parent of Jenny, she would have the right to inherit a portion of Bill’s estate. Should Bill die without a will and without a surviving spouse, Bill’s estate would be split into equal shares, with Jenny receiving the same amount as Bill’s other four children.
Alternatively, even those individuals who have current planning in place – whether a will, a trust or a beneficiary designation – they are at the mercy of the definitions used in those documents. As estate planners, we use legal terms that have been defined by law to ensure uniformity and create consistency. Unfortunately, the law is sometimes antiquated and slow to catch up.
Ensure Your Estate Plan is Clear
Therefore, it becomes even more important to be proactive in ensuring the definitions used in your estate planning documents are clear with respect to who we define as our “children” or “descendants.” Being diligent in this respect helps us avoid unanticipated consequences and/or unintended individuals from being included for inheritance purposes.
Whether you name your children and grandchildren outright, provide a condition as to those children or grandchildren currently known to you, or specifically include step-children or step-grandchildren, each situation and each family is unique.
Just as society and technology evolve, so should your estate plan. While Bill may develop a relationship with Jenny over time and wish to include her as part of his estate, it should be an informed decision made by him and not simply a legal default.
Cortney Danbrook is an attorney at Danbrook Adams Raymond PLC in Traverse City. She provides specialized counsel to individuals and families in the areas of estate planning, administration and succession planning, and advises business clients on liquor licensing and regulatory compliance. She can be reached at (231) 714-0163 or cdanbrook@darlawyers.com. This article was featured in the September 2022 issue of the Traverse City Business News.