Disinheriting a Child
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Why Would Someone Disinherit Their Child?
Sometimes a person might want to disinherit their child in their will. This might be due to a falling out, or it could simply be that the child has been very successful and the parent would rather allocate their property to less well-off children.
How Would a Child Be Disinherited?
Generally, it is not a problem to disinherit a child in your will. However, you need to do so clearly and explicitly. The reason for this is that most states have laws that prevent a child from being accidentally disinherited. As a result, if your will does not mention your child, the law assumes that you simply made a mistake and include the omitted child in the distribution of your estate. Examples of ways to disinherit a child are to state that "I leave nothing to my son John," or "I leave my daughter Alice $1 and nothing more."
Are Minors Protected?
One exception to this is if your child is a minor at the time of your death. Some states give inheritance rights to minors, while other states have laws that require that the child be taken care of until he or she reaches the age of majority, which is usually 18.
Can a Parent Use a Threat of Disinheritance to Influencing a Child’s Behavior?
If a parent really wants to change a child’s behavior by controlling estate distribution, the parent should use a trust instead of a will. Trusts allow parents to withhold money and property from children unless the children fulfill certain requirements. Since the trust is carried out by a trustee, the parent will have a living representative who can enforce the parent’s wishes.
For example, a trust can withhold money from a son unless the son quits smoking or marries a girl of a certain religion. Note that this power has limits: trusts cannot compel beneficiaries to break the law.
How Could a Child Challenge a Will?
If a child is disinherited by his or her parent, it is not uncommon for the child to challenge the validity of the will. Typically, there are two methods of challenging a will.
First, the child may argue that the parent lacked testamentary capacity. The child may argue that the parent did not understand what the parent was doing or that a sibling was coercing the parent into disinheriting the child. The parent can guard against this type of challenge by stating in the will why the child has been disinheriting, although the parent should avoid using a hostile tone when writing.
Second, the child may argue that the document does not meet the proper formalities to be a will. Although there are legal doctrines which can save a document which does not meet the formalities, the best defense to challenges based on formalities is to comply with the requirements of estate law.
Can a Will Disinheriting a Child Be Revoked?
Yes. Wills disinheriting a child, like all wills, can be revoked or cancelled by subsequent writing or physical destruction of the will.
Can Children Be Disinherited from Other Estate Planning Devices?
Unlike wills, parents do not have to explicitly leave a child out of a trust, life insurance policy, POD, or other estate planning devices. Such devices must explicitly include a person for that person to receive the benefits of the device.
If a parent wants to leave a child out of a trust, the parent merely has to omit mentioning that child. The only complication is if the beneficiaries of the trust are a class of beneficiaries, in which case the parent should explicitly declare that the child is not to be included in the trust. For example, a class trust could say "The beneficiaries of this trust are my children, except for John, my second son."
Do I Need a Lawyer?
If you have any questions about wills or disinheritance, you should consult with an estate planning lawyer. An experienced attorney can let you know what the laws are in your state, and advise you of your options.
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Last Modified: 12-19-2013 04:54 PM PST
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