Really seems to me that the argument is about “what limits on trusts are allowed”, rather than “should there be any at all”.
Everyone in this discussion agrees that SOME restrictions on posthumous contracts are allowable - I think it makes sense to everyone here that “I leave this in a trust to be given to my grandson only when he’s 18” is a legitimate restriction.
And I think everyone(?) agrees that not ALL restrictions are allowable - like the one about no perpetuities, so that 200 years after you die you’re not still running people’s lives from beyond the grave.
But I think the specific rules need to be discussed individually and in detail (because the details matter) rather than in broad philosophical strokes. And one of the reasons the details need to matter is so that a dying person doesn’t need to do a bunch of legal chicanery in their last days, so they can be straightforward and clear and it’s easy to understand what can be done and what can’t.
Because “it’s my money” includes the idea that I still get to decide to some degree what happens to my money after I am dead.
“Because it’s my money”, for me, is a complete explanation of why I should get to put conditions on how it is spent after I am dead. If I can give somebody my money now, while I am alive, with conditions, and expect those conditions to be respected, I should IMO be able to expect that I can make conditions that are respected on the money I leave after I am dead.
I am not talking about frivolous conditions. I am expecting that my conditions are going to be in good faith, just like they are now. If someone doesn’t want to accept the conditions while I am alive, they don’t get the money. If someone doesn’t want to accept the conditions after I am dead, they don’t get the money.
I want the moral satisfaction of thinking that my money will go for someone else’s benefit, after I am dead. There is really no more to it than that, and as far as I am concerned, that is enough.
I can pick who my money goes to, and that’s a good thing, because there are people I like better than random strangers, or the government, so I want to benefit them rather than random strangers. I want to benefit those people, and so I put conditions on what they can do so that the money IMO will be to their benefit and not their loss. I don’t want to just shrug my shoulders and say “oh well, if they drink the money away or waste it there’s nothing I can do about it.” I want there to be something I can do about it.
We are going back and forth because the answer to “why should your wishes be respected after you are dead” is “because I want what’s best for those to whom I leave my money”. If they disagree about what’s best, I want to be able to enforce my wishes, or have society enforce them for me.
For me, by definition “it’s my money” includes the power of deciding how my money will be disposed of after I die. That’s how I want things to be run. If you don’t agree with that, great - do whatever you want - with your money. And I will do whatever I want with mine.
While I agree with your main point, if you give someone money now they don’t have to respect any conditions. I emphasize give. If you pay them to do something, using a contract, then you can. And if you give them money in chunks with conditions, you can stop giving if the conditions are violated.
The difference with trusts is that since you can’t enter into contracts after you are dead, you need a mechanism to enforce your wishes. The language of my trust, IIRC, controlled disbursement, and did not try to regulate how money given to the trustees was spent if it was given in a lump sum.
Spain does the same, with 14 different regional variations on who the required heirs are, what needs to be done to disinherit them, and what is the minimum that must be left to them.
Sort of. We are going thru this at my church, as we prepare for our annual budget. People give money for specified purposes, and if we don’t spend it on those purposes, they could, in theory, sue us and make us give the money back. We had a designated fund for stained glass windows for years, because we never quite had enough for one full window, so we couldn’t spend it.
But I get your point about the enforcement mechanism.
You have no way to enforce that prenup though, if you’re pushing up daisies and your wife has taken up with some ne’er-do-well who’s after her for the money.
The only way to enforce such a plan would be for each of you to leave your funds in some kind of trust. A bypass trust (I think that’s the term) is a pretty common way of leaving your worldly goods; the intent is that if you have a large enough estate to trigger inheritance taxes, it’ll get taxed when you die, then again when your spouse dies - so you leave your money to the trust, at which point your spouse may use it as she wishes, but whatever’s left when she does goes wherever the trust designates (and since it’s not inherited again, it isn’t taxed again).
I don’t know if such a trust can be written to only allow limited distributions. But i would (I believe) not be subject to the new husband trying to get money in a divorce, and she couldn’t leave it to the new husband outright. Nothing to stop her from drawing down on it and giving THAT to the husband, unless the trust was written to allow only those limited distributions.
There’s also a “life estate” which could be set up for the house - wife gets it, gigolo can live in it with her, but when she dies, it goes to the kids.
Correct, and we went thru all this with the lawyer.
We decided not to go thru with the trust idea, because I don’t want to tie her hands - I want her to get the money and the stuff unconditionally. I trust her. ISTM that the idea of a trust is to enforce my will from beyond the grave, and I don’t feel that need. But, in principle, if I was going to leave my money to someone I didn’t entirely trust, I still feel like I should be able to do it.
But as I said, if I kick off and she takes up with some boy toy, God help the boy toy. She will have him entrapped with her feminine wiles in less than no time. He will do whatever she says, and he won’t be able to help himself. And he will rather enjoy it.
The other aspect of the trust is, as I mentioned, to reduce inheritance taxes. The vast majority of people don’t have to worry about that, of course, as they don’t have enough to trigger the tax - but in case you’re richer than you let on :D, it’s a thought.
In both cases, if the property is left outright to the person and they are at that time in compliance with whatever the rule is, then there is absolutely nothing to stop that person from then going and doing whatever behaviors the decedent disapproved of.
If the money is “theirs only so long as they comply”, it’s not left to them: it would have to be left in some sort of trust, which continues to own the property, and allows the recipient use of the property. Money would be distributed to the person on some sort of periodic basis; the land would be held in trust and the person could live on it / rent it out / whatever, but when they fall off the wagon, they lose access to it.
If the land / money were left to them outright, there’s no way to make them give it back.
If you leave your money subject to whatever conditions, you’d better have that will vetted thoroughly, otherwise the disappointed recipient could case the estate to be wiped out by the lawyers. Certainly as noted something like “can’t marry a black person” is likely to be overturned.
For what it’s worth, we have set up a special needs trust for our son (and need to set one up for our daughter). In both cases the aim would be to preserve the money to help them, while allowing them access to needs-based financial assistance that is related to their disabilities. By the OP’s argument, we shouldn’t even be allowed to do this, right?
