What’s Fair?

“I just want what’s fair.” As mediators Sig and I hear this from divorcing couples, from family members contesting a will or trust, and even from parties in civil lawsuits. Sometimes they ask us directly, “What do you think is fair?”

We try to toss the question back rather than answer it. “Well, what do you mean by ‘fair’”? We ask because we really don’t know.

Fairness is not the same as justice. Justice is rights-based, getting what’s legally owed. It’s about keeping the rules. Fairness is more complex. It has aspects related to religion, family history, culture, emotions.

For instance, here are some considerations for a father preparing to make a will:

Is leaving everything in equal shares to your two children “fair”? Depends . That would be distributive fairness and may be fine with everyone.

But what if one child is a single mom struggling financially, while her brother is a partner in a major law firm? During his lifetime Dad has helped out his daughter by paying for child care and unexpected emergencies. Dad wants both his children to be able to live comfortably after he’s gone. To leave the daughter a bigger share would be “needs” fairness. Would the brother think that was fair?

(Hint: he might wholeheartedly agree IF he understood Dad’s reasoning. Or he might volunteer to take over some of his sister’s expenses himself if Dad chose equal distribution.)

Then there’s “merit” fairness. Say Mom becomes an invalid but wants to stay in her own home. Her son quits his job and moves in to care for her full time. Mom wants to leave the home to that son. The caregiver thinks that’s fair. But his sister – who may or may not have contributed to Mom’s upkeep – thinks her brother’s a freeloader and should have even been paying rent. What’s fair?

And, of course, fairness is much more complicated when a second marriage and step-children are involved.

How the parent views fairness will, of course, control. It’s your money and your decision.  But to preserve loving relations among your heirs– and loving memories of you — the important point is this: Before you die – and preferably before you make your will – talk to your kids.

Especially talk privately to the ones to whom you plan to leave less. Explain your concept of fairness, and listen to their feedback. Try to get their understanding and buy-in to what you have in mind. Even if they don’t agree they will know you loved them all and tried to do the right thing.

Carolyn