What is equitable? Is equal ever fair?  One of the most common questions and one of the most common abuses I see in my everyday work, particularly in reviewing estate plans, wills and trusts, is seeing heirs with vastly different contributions of value to the business and/or estate being treated equally. 

One’s birthright is often abused when the eldest child is literally held back from his or her potential by parental lack of faith in the future and worries that there won’t be enough to “go around” when it comes time to support the younger children.  There seems to be a “union” mentality in such plans.  And few successful family businesses can afford to uphold common labor union stances.  Yet unions do respect seniority.  The longer that you are a member of “the union” the more your job is going to be protected. 

No one can dispute that it is a tough job being a “proper” parent.  Nor is it a “cake walk” to be the eldest child.  It is as Malcolm Forbes said, “The first born, invariably, has a tough time bringing up his parents.  If you have a choice, be last.”  Once elderly, a parent may become the “helpless child”, often making poor decisions, and the child must then become the “parent”.   

More often than not, the older children die first, so when the eldest gets an equal amount, inheritance-wise, he or she usually has less time to enjoy whatever it is.  Perhaps equitable inheritance formulas could be developed based on life expectancy versus the time value of the dollar value, with the amount left per heir either boosted or discounted by such factors. 

Obviously, no matter where one appears in the birth order, children, particularly those involved in a family business, could learn to contribute more and be a greater asset, could be more loving and respectful than  siblings who add less.  When that is the case, they should receive more than equal consideration.  Yet, on the other hand, even though a child has labored in the business for a long time, he or she may not deserve  what they think is a fair share.  There should be no reward for being lazy, stupid, flat out stubborn, or a chronic pain.  In every business it can be justified that reward be factored by “What have you done for me lately?”.  To do otherwise, the incentive to be dedicated and supportive is defeated.  Children who care for their parents in their old age should be prime candidates for receiving “extra helpings.” 

Likewise, children who help the business grow should never have to “pay twice” for what they help create or preserve.  Yet, that so often happens.  Frequently, the children not involved in the family business are awarded an equal share of it.  All the while, they are busy drawing salaries, having more spending money working elsewhere, with the protection of a retirement program as a “bonus” for leaving home.  Often the value of the business is the only security for those who stay on.  

It is unfair for a child to go deep into debt to buy out what should be rightfully his or her’s in order to stay in business.  The buyout should be discounted by their service years.

Was it the Bible that originated the idea that everyone should be treated equally?  Maybe it spins off from Jesus’ parable of the workers in the vineyard.  Those believers who “started to work at 6:00 a.m.” were paid the same day’s “wages” as those who “started at 6:00 p.m.”  Wasn’t Jesus referring to one’s opportunity to enter Heaven? 

I believe that to be so– that long-standing believers and those who confess Christ as their savior at the last moment can be saved on an equal basis.
I confess I have a problem accepting that as fair…  But I’m not in charge… and should be grateful for His Grace to have one last chance… 

I’ve inquired of lawyers and my pastor about where the idea originated of treating everybody equally, now that birthright has become disenfranchised.  In the Old Testament, Isaac’s son Esau did not place a high value on his being the first born.  He was totally focused on being an outdoors man.  For a pot of beans to fill his hungry hunter’s tummy, he traded his birthright to his brother Jacob, who then disguised himself in his brother’s clothing to trick his blind father Isaac into giving him Esau’s birthright.
 
In Biblical times, the eldest son was indoctrinated with the knowledge that it was his responsibility to become the head of the family when something happened to his father.  This heavy yoke justified his inheriting two-thirds of the estate, as it was his duty to support the entire family, including providing dowries to marry off his homely sisters, which served as their security.  The dowry was given to the daughter’s husband, who gave the ten pieces of silver back to his bride.  She wore the coins sewn into her headband as a sign of being married.  The other third of the estate was divided among the other sons for them to start their own businesses.

One source said the “equal” idea comes from our Declaration of Independence, wherein it is stated “that all men are created equal.”  (Every experienced woman knows that is not true.) So through the dynamics of the development of the American republic, it became a precedent rather than a concept to be studied before automatically putting it into written plans.

An explanation that rings a bell with me is the theory that treating every heir equally comes from the state law which is an extension of the Declaration of Independence.  Ohio’s law clearly states that the children of those who die without a will shall be treated equally.  I know from experience that many of those who create a will do so under duress, thinking that it has to do more with dying than living, and most do not want anybody to be angry after they are gone.  And the attorney, who is focused on keeping the client happy, fails to document the reasoning behind the parents’ decision, that “equal is also fair.”  

Should anyone ever be treated equally?  Of course!  Let’s say there are three children.  They should be treated as equals if they are triplets - were born painlessly within minutes of each other, nursed their mother a like amount, consumed pablum, oatmeal, and steak in like quantities, had the same number of cavities in their teeth to be fixed, caused equal value “dings” on the same family car… You get the picture?  Otherwise each person’s situation deserves individual study and evaluation.  Sometimes unfortunate circumstances, including ongoing health challenges… financial setbacks out of the child’s control, etc.… warrant more than being treated equally, just as the lack of caring interest justifies receiving less.

Editor’s note:  Yes, you must have guessed by now that I am the eldest child who chose to stay home. -RDE