Disinheriting a Child

Disinheritance is where a person chooses to leave a family member who otherwise would have received assets from the estate out of the will.  “Testator” is the legal term used to refer to the person whose wishes have been expressed in the last will and testament. A “will” is the written document that outlines how the testator’s property will be distributed after their death. Beneficiaries are the people named in the will who receive gifts of money or property according to the terms of the will.

A person can be disinherited because they have been left out of the will completely, or because the testator specifically stated in the will that they do not want that family member to receive any part of the estate. For example, the testator might go out of their way to name a family member in their will and include a statement that they do not want that person to receive anything from their estate. This is to make the testator’s intent clear in the face of any challenge to the will.

Whether the testator’s desire to disinherit their child will be honored will depend on the age of the child and state law, regardless of how explicit the testator was when they drafted their will.

Why Would Someone Disinherit Their Child? 

There are many reasons why a person might want to disinherit one or more of their children. Some people might not want their child to inherit under their will due to some kind of disagreement or falling out. 

Others may feel that their children are already financially secure and would rather their estate go to help others. It is also possible that a parent does not trust that their child would manage the money well, and would prefer that their child earn their own money.

How Would a Child Be Disinherited?

Most states have laws that prevent someone from accidentally disinheriting their child. That means that if a child is simply not mentioned, without additional language indicating an intent to disinherit the child, the probate court will conclude that the omission was accidental. Therefore it is necessary to clearly and explicitly outline your intent to disinherit your child. 

Examples of language that indicate an intent to disinherit a child might include, “I leave nothing to my daughter Mary,” or “I leave my son John $1.00 and nothing more.”

Are Minors Protected?

State laws protect children under the age of 18 from disinheritance. There is an obligation to support minor children and that obligation cannot be avoided by disinheritance. Some states might require that the child inherit a portion of the estate; others might require that the child is supported or taken care of until they reach the age of majority, which is usually age 18.

Can a Parent Use a Threat of Disinheritance to Influence a Child’s Behavior?

A parent who wants to control their child’s behavior via distributing the benefits from their estate should use a trust instead of a will. Trusts allow parents to withhold money or property from their children unless the children meet certain requirements or reach certain milestones. The parent can name a trustee who will be able to enforce the parent’s wishes after their death.

For example, a trust can withhold money until after a child graduates college, quits smoking, or gets married. The power a trustee holds is limited, and trusts cannot compel beneficiaries to break the law.

How Could a Child Challenge a Will?

A child who has been disinherited by one or more of their parents will probably contest the will. There are generally two methods of challenging a will: lack of testamentary capacity, or alleging that the will was not executed according to the required legal formalities.

• Lack of Testamentary Capacity: The child might be able to argue that their parent lacked testamentary capacity. This means that the parent did not understand what they were doing when they drafted their will. It could also mean that someone else, like a sibling, family member, or caretaker was coercing the parent into disinheriting their child. This type of challenge is common when an elderly or sick parent makes a will or suddenly revokes their will and writes a new one that disinherits a child or children and makes a caretaker a beneficiary instead.

• • A similar situation is where one child begins spending more time with a parent and taking care of them. The parent might leave a larger inheritance to that child or disinherit another child completely. The disinherited child might argue that their sibling exerted undue influence over the parent and convinced them to change the will or make particular bequests that favor them at the expense of other children.

• The Will is Not Legal: The child might attempt to prove that the will was not executed according to the proper formalities to be considered a legal will. In most states there are certain requirements that must be met for a will to be legal. For example, most wills must be in writing, it must be signed at the end by the testator, and must be signed by two disinterested witnesses.
  
  There are legal doctrines that can save a will that is missing some of the formalities but the intent is clear, however, a testator who intends to disinherit a child should be sure to comply with the requirements of their state’s estate laws.

Can a Will Disinheriting a Child Be Revoked?

A will that disinherits a child, like any other will, can be revoked by the testator. A testator can revoke or cancel their will by physically destroying the will or by writing a new will that expressly revokes the old will. The new will can include a statement such as, “this will revokes all prior wills and codicils.”

Can Children Be Disinherited from Other Estate Planning Devices?

Children do not have to be explicitly left off of other estate planning devices such as trusts, life insurance policies, or payable on death (POD) accounts. These devices must explicitly state who is to receive the funds for that person to be a beneficiary. 

A parent who wants to leave a child out of trust just needs to omit that child’s name. The only exception would be if the trust is for the benefit of a class, such as “the children.” In that case the parent would have to explicitly name the children that should be included and which should be omitted. 

For example, a trust intended for the benefit of a class could state, “The beneficiaries of this trust are my children, except for Mary, my oldest daughter.” It is important to be clear and explicit so that there is no room for anyone to question the intent of the estate planning device at issue.

Do I Need a Lawyer?

Estate planning, or deciding how you want your property to be distributed after you die, is an important decision. In some cases, and depending on your particular circumstances, it can be quite complex. You should consult with a will lawyer to make sure your property is distributed according to your wishes and intent. The only way to make sure your specific wishes are honored is to have a legal and valid will that conforms to state law.

An experienced attorney can help you make a plan for your property and advise you regarding any options you might have for disinheriting your children. They can help you draft a will and/or prepare a trust that will distribute your property the way that you want. It is important that your will conforms to all of the legal requirements so that you can be confident it will hold up against any challenges by disinherited children.