The Elizabeth Edwards Estate: Will John Truly Be Disinherited?

January 7, 2011
300px Elizabeth and John Edwards by The Tonight Show The Elizabeth Edwards Estate: Will John Truly Be Disinherited?

Elizabeth and John Edwards on the Tonight Show. Image via Wikipedia

Making the rounds in the news lately is the fact that Elizabeth Edwards, who passed away this past December 7, has seemingly disinherited former Presidential candidate and husband John Edwards by not including him in her will.  Inside Edition has released the will, signed six days before Ms. Edwards’ death.

The matter is illustrative of difficulties that can even occur in a well-planned estate caused by changed circumstances close to death.  Fortunately, it appears as if the Edwards family can settle these potentially volatile matters privately and protect the children from further public attention.

I am assuming that North Carolina will have full jurisdiction of this case.  I am not a North Carolina attorney, so the discussion below should be viewed merely as hypothetical and perhaps educational.

Pourover Will and Revocable Trust

It is perhaps under-reported that Ms. Edwards’ will is a Pourover Will.  When one has a revocable trust as her primary estate planning document, ideally all of her assets will be transferred into the trust during her lifetime.  If not, a will (usually prepared at the same time as the trust) “pours over” the remaining assets into the Trust after death.

In her will, Ms. Edwards appointed her adult daughter, Catherine Edwards, as executor.  The will directs that her personal property be split amongst her three surviving children:  Catherine (an adult), and two minor siblings.  Article V contains the main pourover provision – the remainder of her estate is to be added to her Revocable Declaration of Trust (hereinafter “Trust”), established in 1992.  Mr. Edwards is entirely omitted from the will.

Contrary to reports, it is actually unknown whether or not Ms. Edwards was attempting to fully disinherit Mr. Edwards.  The non-public Trust terms will ultimately determine whether or not Mr. Edwards is a beneficiary.

Was Ms. Edwards of Sound Mind?

North Carolina law states that a will is not valid unless the person making it is of sound mind.  In this matter, two facts come to mind that could possibly raise some questions about Ms. Edwards’ abilities:

  • She signed less than one week before her death.  Was she in any sort of condition to sign or understand what she was signing so close to her passing?
  • The notary altered the typewritten document.  In two places at the end of will, the notary crossed out and initialed a change from the typed October to the handwritten December.  Such changes are typically made by the testator herself – why didn’t Ms. Edwards initial the change?

On the other hand, an adult is generally deemed to be of sound mind unless declared otherwise by a court, which did not appear to occur here.  Mr. Edwards would have the tough burden of proving Ms. Edwards’ incapacity at the time she signed.

Were Mr. and Mrs. Edwards Still Legally Married?

In many states, including North Carolina, spouses are protected from being completely disinherited through “elective share” statutes.

Mr. and Mrs. Edwards legally separated in late January 2010, and she intended to file for divorce immediately after North Carolina’s 12-month separation requirement.  However, because she died before the 12 months expired, the two were still legally married at her death.

As a result, Mr. Edwards could potentially make a claim for 1/3 of Ms. Edwards’ estate (including the Trust’s assets) under North Carolina’s “elective share” statute.

Guardianship of the Minors

A guardian named in a will is merely nominated, and is not officially named until approval by the court.  In North Carolina, a surviving parent is also the children’s natural guardian.

In the will, Ms. Edwards nominated her adult daughter Catherine as the guardian of her two minor siblings.  However, this North Carolina Bar publication reminds us that a parent cannot cut off the parental rights of an ex-spouse simply by naming someone else in a will as guardian.

Mr. Edwards could probably challenge Catherine’s claim to guardianship on these points.

 The Elizabeth Edwards Estate: Will John Truly Be Disinherited?
 The Elizabeth Edwards Estate: Will John Truly Be Disinherited?


Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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