Love LetterOn Valentine’s Day, Zack takes Kelly, his high school sweetheart who goes to a different college, to the Max for a romantic dinner.  At the end of the meal Zack says, “Kelly, I want us to promise each other that after college we’ll both move back to Bayside and get married.  Will you marry me?”  Kelly responds, “Oh Zack, that’s wonderful!  I love you so much and I promise.”  Delighted, Zack puts the engagement ring on Kelly’s finger and says, “That’s great Kelly!  Now there’s one more thing – I spent every dime I made working last summer on this ring.  Will you promise me that if we don’t get married after college you’ll return this ring?”  Kelly writes on her napkin “I promise to return my engagement ring if we don’t get married after college,” signs her name and gives it to Zack.


Two years later, Kelly decides to take make a surprise visit to Zack’s school one weekend.  When she arrives she finds Zack at a party kissing another woman.  “You two-timing slime ball!  We’re through and never getting married,” Kelly tells him.  Zack asks for the ring back and Kelly refuses.  Three months later Zack sues Kelly for the ring.  He still has Kelly’s napkin from Valentine’s Day.  Does he have a good case even though he’s a pig? 

Written Promises Around Engagements Are Enforceable

We covered this topic many years ago under a different fact scenario and the law has not changed since then.  Zack is entitled to the ring. Kelly promised in writing to return the ring if they did not get married after college.  Importantly, Kelly’s written promise was not conditioned on who broke off the engagement or why it was broken off.  Thus, Zack gets the ring although his actions caused Kelly to call off the engagement.

What if Kelly Didn’t Give Zack the Napkin?

Kelly probably gets to keep the ring because it was Zack’s fault that the engagement ended, even though Kelly called it off.  In the absence of an enforceable written agreement, Texas follows the conditional gift rule, which requires Kelly (the donee) to return the ring to Zack (the donor) if Kelly is at fault in terminating the engagement.  But, Texas courts allow the donee to keep the ring if the donee can prove that there was a justified reason for calling off the engagement.  Zack’s cheating should be enough, absent other facts.

Tilting the Scales in Your Favor

While some people might find the conditional gift rule offensive, other people may see it as a reasonable approach.  Regardless, it’s important to remember that if you have significant assets you are bringing into a new marriage, you may want to consult with an attorney about whether you should have a prenuptial agreement in place in case the marriage does not work out.

baton passRecord Wealth Transfer. Over the next 30-40 years about $12 trillion from those born in 1920s and 30s will be transferred to the baby boomers, and the boomers are expected to transfer some $30 trillion to their heirs, with more than an estimated $59 trillion transferred from 93.6 million American estates from 2007 to 2061. Much of the wealth is the family business.

70% Never Gets to Third Generation. Shirtsleeves to shirtsleeves in three generations. The first generation makes the money, the second spends it, and the third depletes what’s left. For 70% of all wealthy families, the money has been spent, or otherwise lost, before the end of the second generation and 90% of families no longer have their wealth by the end of the third generation. No planning, no leadership, no communication. No money.

High Divorce Rates and Children with Multiple Families. At its peak, the divorce rate at 50% affected these families and their children, many of whom did not grow up with both biological parents. Less than half (46%) of U.S. kids younger than 18 live with two married heterosexual parents in their first marriage. Blood is thicker than water, and often blood isn’t thick enough.

Geographic Separation. In today’s global society, most adult children live a long distance from their parents, relying upon air travel, cell phones and other technological devices to keep in contact across time and distance. Of about 34 million Americans who are caregivers for an older parent, 15% live one or more hours away and nearly one third of those are helping someone with Alzheimer’s disease or dementia.

Why do Wealth and Legacy Fail to Survive?

Success in the Immediate Wealth Transfer. Most have all the proper structures in place for assets to be seamlessly transferred to the first generation. However they have not properly planned and accounted for the impact of divorce on family relationships, families separated by time and distance and children unprepared to handle new found wealth. There are stumbling blocks that doom their success.

Tripping on Their Legacy. The greatest stumbling blocks?

  • No Family Mission – Lack of Purpose
  • Distrust or No Trust – Lack of Communication and Mishandled Communication
  • No Family Leadership – Lack of a Family Governance System and Lack of Family Leadership

Tilting the Scales in Your Favor. There’s more to your family legacy and your wealth transfer than your will. Planning to succeed. Hand off your wealth well and your legacy does not end when you sign your Last Will and Testament. That’s the easy part. Unless you plan for your estate to be liquidated and the cash distributed (and your children to have little contact with each other after you die), there’s more to be done. Start planning now.

Communication – Lack of and Mishandled.

The often present lack of communication or mishandling of communication is exacerbated by divorced parents who don’t communicate, ex-spouses who have different agendas, half-brothers and sisters who dislike the divorce and each other, and the separation of long distances. And, there’s no substitute for being there. While they had their promise, increasing use of ever-expanding computer technology innovations, such as the internet, e-mail Skype, , Facebook, Twitter, iPhone, iPad and so many other hardware and software developments redefined interpersonal relationships and family communications in unexpected ways.

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