Disinheriting a child is a significant decision and should be approached with caution. Learn how inheritance works and how to disinherit your child without opening your will to challenges in probate court.
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Why Would I Disinherit My Child?
Choosing to disinherit a child is a complex and painful decision. Usually, serious issues in the family cause parents to disinherit a child. Sometimes a parent does not want to provide financial support to a child with a drug addiction. Perhaps a child has made lifestyle choices that the parent does not wish to support, or there is some other estrangement that cannot be remedied.
You might leave your child out of your will for a variety of reasons.
- Behavior: Your child may do something you don’t like. For example, they may marry someone you don’t like or divorce someone you do. Or they may drop out of school or develop a drug addiction.
- Relationship: You may be estranged from your child or not get along with them.
- Need: One of your children may be doing well for themselves, so they do not need an inheritance, and your other children could benefit from more money. Or you may have much younger children from another relationship and want to provide for them since your adult children can support themselves.
- Prior Gifts: You may have given a child a significant sum of money or helped them financially during your lifetime, so they do not need to receive money after you die.
Think carefully about disinheritance because circumstances change. For example, your successful child could run into financial difficulties, your child with addiction could become sober, or you may repair your relationship with your child but not get around to putting them back in your will.
Can I Disinherit My Child?
Yes, as long as they aren’t a minor child (generally under age 18 in most states), you can legally disinherit them in your will. However, check your state laws for disinheritance provisions. For example, in Louisiana, you cannot disinherit children under 24 years of age or who cannot care for themselves due to a mental or physical impairment.
Adult children do not have a legal right to inherit from their parent’s will. However, if the parent dies without a will (called “intestate”), the adult children can receive a share of your estate under your state’s intestacy laws. Therefore, if you are sure you don’t want your child to inherit a part of your estate, you must make a will.
Additionally, even though you intend to disinherit your child in your will, they may still be a beneficiary in some other way. For example, if your child is a beneficiary under a life insurance policy or a retirement account or is a named beneficiary under a transfer on death or TOD account such as a bank account, they may receive those regardless of your will disinheritance clause. Check your beneficiary designations on those accounts and policies to ensure your assets go to the people you intend to receive them.
How To Disinherit Your Child in Your Will
There are ways to disinherit your child from your will so they cannot receive a share of your estate. For example, you may do the following:
- Identify a Disinherited Child in Your Will: To legally disinherit your child, you should identify the child in your will and specify that you intend to leave nothing to that child. Most state inheritance laws require you to disinherit a child through a will, not through a trust. So, if you have a living trust and specify that this child receives nothing under the trust, this is insufficient. You must specifically disinherit that child in your pour-over will that accompanies your trust.
- Add a No-Contest Clause: You can include a no-contest clause in your will. This clause provides that if anyone unsuccessfully challenges your will, that person will forfeit all inheritance. However, this clause has minimal effect in the case of a disinherited child. If the challenge is unsuccessful, the child has nothing to lose except time and money spent on legal fees. And some states do not enforce “no contest” clauses. Still, this clause could be useful as a deterrent to a will contest.
- Leave a Minimal Inheritance: You can leave a child a minimal gift in your will as an alternative to disinheriting the child completely. It is important in this situation to specify that your minimal gift is intentional and not by accident. This way, that child will not likely have a successful argument that it was accidental.
- Leave Money Through Beneficiary Designations. If you intend to provide for one child through a beneficiary designation and give your other assets to another child in your will, you must be careful. You must clearly state in your will that you intentionally leave one child out of the will. It is even better if you explain that you provided gifts to the omitted child with other resources.
Challenges to a Will
When a parent takes the proper steps to disinherit in a will, the disinherited child has limited recourse. However, a disinherited child can challenge a will through a will contest. They may allege several challenges to a will, including mistake, undue influence, lack of mental capacity, and improper execution.
Accidental Disinheritance or Overlooked Children
A child could claim the omission was an accident. If your will omits the child you intend to disinherit by not mentioning the child or leaves no gift to that child, this may not be sufficient to withstand a challenge by that child. Most states have an “omitted child” statute to protect children from being accidentally disinherited. For example, if a parent makes a will for their two children, and after the will is signed, the parent has a third child.
The third child may have a legal right to inherit from a parent if the disinheritance appears accidental. In this situation, the child could successfully challenge the will in a probate proceeding. Children of a deceased child that seems to be omitted accidentally from a will may also have the right to inherit the deceased child’s share of the inheritance.
An uninherited child can challenge a will under a claim of undue influence. The claim asserts that an adult child or other family member coerced the testator into leaving assets to the wrongdoer. It is difficult to prove undue influence successfully, and just showing that the wrongdoer persuaded the testator a certain way is insufficient. The child must show that the influence was more serious than this. For instance, if the testator was old, not of sound mind, frail, and dependent on the wrongdoer, undue influence might be shown, depending on state law. The mental state required to make a legal will is usually a low bar to meet, so it is better to focus on the dependency and influence involved in making the will.
Lack of Mental Capacity
Another way an uninherited child can challenge the will is to allege that the testator did not have the mental capacity to prepare the will. Mental capacity is very difficult to prove, especially since a court presumes a will that is properly executed and witnessed is valid and the testator is competent.
Of course, the uninherited child could also allege that the will was improperly executed and, therefore, invalid. While the proper execution of a will is critical to its validity, states vary on how to enforce this.
Challenging a will in probate court is very difficult, time-consuming, and expensive. And most will challenges are unsuccessful. Anyone who wants to contest a will must obtain legal advice from an experienced estate planning attorney.
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