Last week, a client from Brooklyn sat in my office, wrestling with a decision. Her son had stayed local, helping her manage rental properties for years with little compensation. Her daughter, a successful surgeon in California, had a wonderful life but had not been involved in the family business or her mother’s care. “Russel,” she asked, “I love them both the same. But is it truly fair to treat them the same in my will?”
This is one of the most personal questions in estate planning. The simple answer—dividing everything equally—is often the default. But simple is not always right. The work of legacy planning is intentional. It requires moving beyond easy answers to find the ones that are truly equitable for your family.
New York’s Default Plan: The Intestacy Statute
When a person dies without a will, New York State does not guess at their intentions. It imposes a rigid, one-size-fits-all formula for distributing assets under the Estates, Powers and Trusts Law (EPTL).
According to EPTL § 4-1.1, if you die with a spouse and children, your spouse inherits the first $50,000 of your estate plus one-half of the remainder. Your children inherit the rest, divided equally. If you have no surviving spouse, your children inherit everything in equal shares. The law makes no distinction between the child who cared for you and the one who was estranged, or the one who is a millionaire and the one struggling with debt. It is blind to circumstance.
Many people assume an equal split is the “correct” method. This is a misunderstanding. The intestacy law is not a recommendation—it is a fallback for those who failed to create a plan. Your will or trust is your opportunity to replace the state’s generic formula with your own deliberate instructions.
When “Equal” Fails to Be “Fair”
My client’s dilemma is common. Fairness is often more complex than simple mathematics. True stewardship requires you to look at the complete picture of your children’s lives and your relationship with them. In our practice, we see several situations where an unequal distribution is the most equitable path.
One common scenario involves a child with special needs. An equal share of an inheritance may not provide for their lifelong care. A larger portion of the estate, often placed in a Special Needs Trust, is necessary to ensure their well-being without jeopardizing eligibility for government benefits.
Another factor is significant financial support given during your lifetime. If you gave one child a six-figure sum for a down payment on a Manhattan apartment, should that be considered an advance on their inheritance? Many families decide it should. Acknowledging past gifts in your estate plan can rebalance the scales.
Finally, there is the matter of contribution. Like my client’s son, one child may have sacrificed their own time or career to act as a caregiver or manage family assets. Acknowledging that contribution with a larger inheritance is not about playing favorites—it is about recognizing real value and dedication.
The Risks of an Unequal Approach
Choosing an unequal distribution carries emotional and legal risks. The primary risk is family conflict. A child who receives a smaller share may feel slighted or punished, regardless of your intentions. This can create lasting resentment that turns your legacy into a source of discord.
This resentment can also spill over into Surrogate’s Court. A disgruntled heir may contest the will. While the bar for overturning a will in New York is high—requiring proof of lack of testamentary capacity, fraud, or undue influence—a challenge itself is costly and emotionally draining for the family. The legal battle can deplete the very assets you hoped to pass on.
If you decide on an unequal distribution, communication is critical. You do not have to share the exact details with your children, but the reasoning behind your decision should be clear. This can be done in a letter of intent that accompanies your will. Explaining that a larger share for one child is meant to fund a grandchild’s education or compensate for caregiving can defuse potential conflict by framing the decision in logic, not preference.
Ultimately, the choice between equal and equitable is yours alone. It requires careful thought, an honest assessment of your family’s dynamics, and a clear understanding of your goals. It is one of the most profound acts of stewardship a parent can undertake.
A good first step in this process is to create a private ledger. List each child and document the significant financial support you have provided, as well as the non-financial contributions they have made. This document can provide clarity and serve as a foundation for a structured conversation about your estate plan.
