The saying goes we choose our friends not our family. I have had clients who specifically wanted to disinherit one of their adult children. Why even consider such a drastic measure? The reasons why a child is disinherited are unique. Reasons for cutting out a child can range from hate, abandonment, and addictions. Other reasons for disinheritance are to provide for the child that needs it the most or deserve it the most.
The disinheritance of a child is not to be taken lightly because it can be an intensely emotional step on both sides. Parents who make a will disinheriting a child may feel guilty about it for the rest of their lives. A child who does not find out about being disinherited until after the parent's death may be devastated to learn of the parent's rejection.
Attorneys we spoke to encourage family members to reconcile their differences or explain their rationale of intentionally leaving and adult child out of their estate plan. This way the child that receives nothing will know the reason why. Too often the disinheritance can cause problems between siblings for years to come.
In some states the law presumes you would want your child to inherit from your estate, so to overcome that presumption, your will must show you did not unintentionally overlook your child and were not operating under a mistake when you omitted your child from your will. For this reason, to effectively disinherit a child, you must specifically mention the child in your will and use language to indicate you have intentionally failed to make any provision for that child. If you fail to mention your child in your will, the state may award the child his intestate share of your estate as if you died without a will.
To the extent an heir can be disinherited under state laws, sample disinheritance language for a will is: I have intentionally failed to provide for my daughter, Jane. Be sure to mention each of your children by name in your will, even if you include language to disinherit one of them. Only a lawyer licensed in your state can advise on the language necessary to make your will or trust provisions enforceable. A common misconception is that the legal way to disinherit someone is to leave the sum of one dollar or some other nominal amount to the heir in your will. Leaving your child one dollar does not prevent him from contesting a will. Whatever language you include in your will, you cannot prevent an heir from filing a lawsuit against your estate. Any person who has standing and states a claim can contest a will.
If you are concerned that your other heirs will contest your will to try to take property you want to pass to a specific child, consider using a no-contest clause in your will and other estate planning documents. The enforcement of no-contest clauses varies by state, so consult your estate planning attorney.
In addition when planning your estate, you may want to ensure that a particular child inherits a specific piece of property or a specified amount of money and that such inheritance does not pass to any other heir. The following are some of the most effective estate planning methods to ensure a specific individual will inherit specific property or funds after the owner’s death while still giving the owner complete control over such assets during his or her lifetime:
Name your adult child as the pay on death or transfer on death beneficiary on a certificate of deposit or a savings, money market or brokerage account.
Name your adult child as the beneficiary of a life insurance policy.
Name your adult child as the beneficiary of an IRA, 401k, annuity or other retirement account.
Execute a transfer on death deed to real estate and name your adult child as the beneficiary.
As always, putting the assets in trust can eliminate a lot of understandings. Trusts can be a way to support family dynamics.
Some may say that disinheriting a child is unnatural or even immoral. It is advisable not to judge, however, because looking at a family situation from the outside in does not always reveal the true picture. Even if everyone involved agrees that the disinheritance of a child is unfair, the parent has the right to dispose of his or her property in any legal manner in which he or she sees fit.