"Dis-inher-it." The word even sounds a little bit brutal. After all it means that you leave your property assets to some and intentionally cut-off others. No one wants to be disinherited. In the eyes of many it brands you as somehow “unworthy.”
But, let’s face it, there are times when it is advisable, if not necessary to do it.
A man and a woman marry and create a family, and let's say they have three kids. ‘’Mom and Dad" have struggled all of their lives and they may have acquired the family home and a piece of income property. Two of the children have turned out quite well, but one of the children developed a drug problem, or is simply an irresponsible person who goes through money like wind through a wheat field. The estate may have to be protected from him or her. Or it may simply be that this child had deserted his family, wanted to have nothing to do with it.
But not all the reasons for disinheriting have bad connotations. For instance, one may conclude that one child or other person has been successful in life and you feel they do not need a share of the estate. Or you may feel you have provided enough to a person while you were alive. Maybe you provided a down payment on a new home as a marriage gift to your daughter or son, and nothing similar for the other child or children.
And perhaps you disinheriting a person was a mistake or an oversight. This is surprisingly easy to do if you fail to regularly update your will when children marry or re-marry, when new children or grandchildren are born, etc. This can be referred to as “pretermitted heir” meaning a person who would likely stand to inherit under a trust or will, except that the testator (the person who wrote the trust or will) did not include the person in the trust or will. This omission may have occurred because the trustor or testator did not know of the omitted person at the time the will was written.
Whatever the reason, as an estate planning attorney I advise you to think it through and to think it through with a qualified estate planning attorney. I also advise periodically update your trust or will.
The first consideration is who you can disinherit. The law in many jurisdictions offer protection by statute for the interests of a spouse or a child. California, for instance, is a community property state which means, your spouse owns half of what you accrued during marriage.
Your estate has no power over that clearly defined interest. The same may be true as to your minor children. The law will limit how far you can go. It will force you to provide for your minor children if the estate can. The spouse and the minor children may be considered beneficiaries by law. These laws must be considered in planning your estate.
You can disinherit a parent or parents, of anyone else. This is an overview of the legal situation.
Now let’s talk common sense.
If you disinherit a person they may be able to challenge your will after your death. Such litigation may tie up the trust or will preventing other beneficiaries and children from reaching the assets and certainly will create considerable legal expense.
One safe guard is to include a clause that anyone challenging the will or trust, will lose anything they inherited if they lose the challenge.
Such clauses may work if you left the person challenging the trust or will something of value. If you leave a person you want to disinherit something to act as an incentive to not to challenge the will or trust. This will make it less likely there will be a challenge. There are other effective methods to impede a challenge to the will or trust.
Most clients are loathe to tell someone they are to be disinherited. They do not want to deal with the consequences of that revelation.
But, think about it. If a child, or relative first finds out they are disinherited after you die and the will or trust is read, they will feel cheated. They may bring legal challenges claiming other relatives have exerted undue influence on you when the will was made. They may see conspiracies and claim to have been a model and caring child who provided love and emotional comfort to the now deceased. They may even complain that you were not of sound mind.
These issues can be eliminated by a letter to the disinherited party while you are still alive. Your attorney may be able to assist you in writing a diplomatic letter to the person. (But it must be your letter, and yours alone.) Such a letter may eliminate challenges based on undue influence, and accusations of “back stabbing” relatives. It will go a long way to defeat accusations you were not of “sound mind” when the disinheritance occurred.