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Do I Have to Leave Anything to My Children?

Posted by Mona O'Connor | May 24, 2021 | 0 Comments

One common storyline in Hollywood movies is the rich father disinheriting the family outcast. The story usually traces the child's attempts to win the father over and be considered a part of the family again. But can fiction imitate reality? Can you actually disinherit a child? The answer, in most circumstances, is yes. You can disinherit a child under most states' laws, but you must understand the limitations and additional factors if you are considering this option.

Even though you can disinherit a child, the law does not allow parents to disinherit minor children. The only exception to this rule exists in Louisiana (with certain limitations). In the other states, you cannot effectively disinherit a child until they reach the age of majority (18 or 21, depending on the state).

Why might someone consider disinheriting a child?

People consider disinheriting a child for various reasons. A parent may have an estranged relationship with a child that causes the parent to consider not passing on money or property to that child. A parent may also consider disinheriting an adult child if the adult child has accumulated sufficient wealth and does not need additional wealth from the parent. Another instance where a parent may consider disinheriting a child is if the parent is worried that the adult child will misuse a future inheritance, especially if the child has squandered the wealth provided thus far.

Regardless of why a parent may consider disinheriting a child, it is typically a poor idea to use disinheritance as a tool to manipulate a descendant or other beneficiary. For one, a disinherited child may be extremely disappointed or angry and cause turmoil within the family after losing an inheritance. The child could, in turn, attempt to challenge the validity of your estate planning documents. A challenge to your will or other important documents could result in a court proceeding that could delay the rest of your family's access to their rightful inheritances.

A no-contest clause, also called an in terrorem clause, is one legal option that can help avoid challenges to a will. The clause states that if someone challenges the validity of a will or trust and loses that challenge, they will also lose the inheritance they would have originally received. This clause is helpful, but it is not available in all states. For example, Florida law does not recognize no-content clauses in both wills and trusts. Moreover, other states have carved out various exceptions that make it difficult to apply this type of clause successfully. With these potential problems, it is important to explore alternatives for you and your family.

What are the alternatives to disinheriting a child?

As a parent, you have multiple options for how you transfer your wealth. It is not an all-or-nothing situation in which you must give everything to your child all at once, or not give anything to your child at all, ever. One option is to structure your estate plan to grant your child a minimal amount. The benefit of leaving something small is that it makes it more difficult for a child to argue that you intended to disinherit them. Providing a small amount can serve as proof that there was the intent to leave something to the child. In addition, providing a small amount to your child under a will or trust may discourage a legal challenge because your child will lose something if their challenge is unsuccessful. If your child is to receive nothing and loses the challenge, they are still in the same position they were before.

Another option for distributing your money and property is to hold the money and property in a protected trust for that child's benefit, with a trusted person or entity serving as the trustee, and provide small amounts to the child over time. You can tie these distributions to your child's age or particular achievements, such as graduating from college or staying away from alcohol or drugs for a designated time. You can provide these incentive-based payouts for the child you still want to support but who has given you cause for concern about their use of the funds.

Finally, you can create a trust for that child's benefit, appoint a trusted person or company as the trustee, and allow the trustee to use their discretion as to how and when the money and property will be used for your child. Your trustee can be a person who has proven that they can handle the responsibility of managing the assets without succumbing to pressure from your children or the temptation to misuse the funds. These options provide alternatives that allow you to control how you distribute funds to your child. However, if these options do not adequately address your situation, you can still disinherit your adult child.

How do I disinherit my child?

If you remain interested in pursuing this route, the most important step you must take is documenting your intentions in your estate planning documents, including your will or trust. If you fail to document your wishes adequately, your child could receive a portion of your money and property under the state's default rules. Consequently, any property that is not distributed using proper estate planning methods, such as the valid execution of a will or the lawful creation of a trust, will be distributed according to the state's laws, which will include the child that you wished to disinherit!

Additionally, even if you create a will but merely omit your child's name without clearly stating your intent to disinherit them, you are setting the stage for the disinherited child to challenge the validity of your documents and claim that it was an accidental omission.

Call our office.

Decisions regarding how you want to pass your money and property to your children after you die can be tough, and ensuring your desires are legally carried out can be complicated. You do not need to face those challenges by yourself, however. Mona O'Connor of O'Connor Law Offices is dedicated to helping people like you protect your legacy and your loved ones. If you have more questions about your options or are ready to put your estate plan in place, call our office today to schedule a meeting today.

About the Author

Mona O'Connor

Mona L. O'Connor joined the firm in 2008 and is currently a partner with O'Connor Law Offices. She is a J.D., C.P.A. and her primary areas of practice include estate planning and trust administration.


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