Having been an Estate Planning Attorney for 24 years, I have heard the statement, “Our child has disinherited us and our family” more than a few times.
A parent does not normally decide that they just want to disinherit a child. Almost always, the child has taken actions to distance themselves from their parents and family. When this happens, a parent may feel that the child through their actions has stated, “I don’t want to receive what you have. I do not want to be included in your family.”
Most state laws permit you to totally disinherit a child, regardless of reason. However, care must be taken in order to effectively disinherit a child.
First, it is important that you have a will or a trust. If you die intestate (without an estate plan), state laws provide that your children are entitled to a share of your estate. Therefore, if you die intestate, the child you wanted to disinherit will share in your estate against your wishes. If it is your intention to disinherit your child, it is imperative to specifically reference that child by name in your will and/or trust and acknowledge that you are intentionally not providing for that child. Failure to do so could allow that disgruntled child to claim that he or she was unintentionally “omitted” from your estate plan and force a share of your estate, thus thwarting your wishes.
Using a trust may provide additional benefits over a will when intentionally disinheriting a child. Trusts are not automatically subject to the jurisdiction of the probate court. The notification requirements of the probate court do not apply. The trustee of your trust is under no obligation to provide the disinherited child with the details of your estate plan since he or she is not a beneficiary. Additionally, should your disgruntled, disinherited child choose to challenge the validity of your trust, he or she confronts a number of obstacles not present in the probate process.
Disinheritance is a personal issue. One who wishes to disinherit a child may find that there are other effective options, such as putting assets in a separate trust for that child, with a trustee of your choice making the decisions of what the money can, and can not, be used for. It may be wise to consult an estate planning attorney to become informed of all your options before making decisions that affect the distribution of your estate, and possibly the harmony of your family, once you are gone.