Culture plays a major role in estate planning, whether we like it or not. Whereas the law of wills and trusts allows for vast testamentary freedom, millions of Americans, either because they want to avoid talking about death or because they do not have the resources to hire an estate planner, fail to avail themselves of these instruments. Some of the gaps have been filled by other nonprobate transfers like joint bank accounts and life insurance. A simple signature allows one to pass on assets at death using those forms of transfer. But outside of trusts, these nonprobate transfers do not cover all property and do not provide the flexibility of a will. The gap between what the testator wants and what society provides is particularly important if cultural norms prevent the individual from engaging in planning. In a recent article, Shui Sum Lau, a litigation attorney, considers how Asian cultural values can shape end-of-life and estate planning decisions.
According to Lau, Asian cultural values make Asian Americans the ethnic group most likely to support elderly relatives. For example, many Asian-Americans feel compelled to ensure the physical and mental wellbeing of their parents. Because elder care requires time and resources, we can assume that end-of-life planning would at least lower some of the decisionmaking burdens in these delicate circumstances. After all, deciding on life-saving care close to the end of a relative’s life can be extremely stressful for family members. Unfortunately, as Lau underscores, in many Asian cultures, discussions of death are taboo and often avoided, thus leaving children to make uncomfortable decisions on their incapacitated parents’ behalf because they refused to plan in advance.
This refusal to plan has the ironic result of leaving elderly Asian Americans and their families at the mercy of policies designed for the average American. These rules are not at all sensitive to the needs of specific cultures. The background intestacy rules are just as important as wills and trusts in our succession system because so many Americans die without an estate plan. Those background rules are designed to carry out the probable intent of the testator. They not only operate during intestacy but also influence the interpretation of testamentary dispositions because they can fill gaps brought about by ambiguities and imprecise language in wills and trusts. Thus, a refusal to plan is also an invitation for best guesses to be imported from society at large.
The background rules have always reflected cultural normative judgments, including who should take precedence in cases of intestacy, what percentage a spouse and children should receive from a deceased spouse’s or parent’s estate, and whether individuals should be disinherited in cases of ambiguity. It is often difficult to ascertain what the typical American would want in these cases. Traditionally, surveys and studies fill in some of these gaps. Yet these generalized results will always fall short, given the diversity of the nation. For example, some cultures might treat stepchildren the same as biological children while others do not. Thus, the decision of a jurisdiction in one direction or another will not track the wishes of substantial minorities of Americans. This can be a particular problem for Asian cultures that do not split inheritance evenly or that may even favor sons over daughters, preferences that do not correspond with the laws of U.S. states.
End-of-life and estate planning offer opportunities for ethnic minorities to die and dispose of property in ways that are culturally appropriate, but this is impossible if the culture is working against such planning. As such, there is potential for a closer alignment between what cultural minorities desire and what actually happens, but only if this task is approached in a careful manner. Lau suggests that communication and style matter, especially for older Asian Americans. Death might not be a topic that can be discussed forthrightly. Indirect ways of accessing such information are thus crucial. Overall, Lau highlights a greater need for cultural competency amongst attorneys and financial planners seeking to serve this community, while underscoring the need for further research around cultural influence in end-of-life and estate planning.
