In last week's Notes, I mentioned in terrorem clauses. In order for an in terrorem clause to prevent someone from contesting your estate plan, you have to leave them something that they will forfeit.
You have no duty to leave anything to anybody except your spouse, and you must mention your children. If your spouse is not provided for to the minimum set forth in the statute, your spouse may waive the will and claim the "statutory forced share" provided by law.
Antenuptial agreements may limit the right of the surviving spouse to waive the will. These agreements are not bulletproof. To be enforceable, they must be fair when entered into, and fair when they are invoked, and the parties must have made full disclosure to each other as to their assets and income.
Postnuptial agreements, made after marriage, are more likely to be discounted by a court, because of the possibility that the agreement was obtained under duress. The same consideration applies when an antenuptial agreement is made on the eve of marriage.
Antenuptial and postnuptual agreements are not bulletproof but they are better than nothing. They must be carefully drawn with the expectation they may be tested in court.
You have no duty to provide for a child, but if you do not mention the child in your will, he or she may file a petition seeking a share provided by statute. Unless it can be shown that the child was left out deliberately, the child may win a share of the estate.
The practice of leaving a child a dollar has nothing to do with the value of the dollar - it shows that the child has not been forgotten. Don't waste a dollar - simply state in the will that you have made no provision for the child, and that this is not through oversight or mistake.
I don't recommend stating a reason, because this may open the door to questions. Suppose, for example, you state that you are leaving out a child because he or she has not contacted you for five years, and the child produces a UPS record showing that he or she sent you a birthday present two years ago.
