Christine Fletcher had an article in last month’s online Forbes, entitled “Should You Disinherit Your Child?” The full text of the article is below, but I have to say that – to me – the answer is not one that should be made by an attorney, but by the owner of the assets. If someone wants to disinherit their child, as long as that someone has legal capacity to do so and is not being unduly influenced by a wrongdoer, then that someone should do whatever they want with their estate plan. While some have a bias that all children should inherit equally, an inheritance is a gift, not a given. Such that the person giving the gift can decide exactly what they want to do with their money, or exactly what they do not want to do with their money.
As a fiduciary litigator, I have handled many cases where a disinherited child simply cannot fathom why THEIR money wasn’t left to them, in spite of piles of evidence confirming it was their own poor choices that alienated them from their parent, but those children also forget that it wasn’t THEIR money to begin with.
An experienced estate planner can talk a client through the pros and cons of disinheriting a child, but the decision rests with the client and must be respected.
Article: “Most people should not disinherit their child. If your child does not buy you a birthday present or forgets to call you on Mother’s Day – even if it is every year without fail – do not run to your lawyer and cut them out of the will. Those are not reasons to disinherit a child.
Political differences are also not a reason to disinherit a child. You should have stronger familial bonds with your children that can withstand differences of opinion and political views.
There are, however, times when children should be disinherited. These situations mostly involve children who have experienced extreme addiction or mental illness issues that have been left untreated and have caused severe pain within the family. It can be difficult to get clients to discuss these children, but it is important to know the story behind the disinheritance.
If the decision is made to include the “problem” child, consider trust provisions that will limit the child’s access to the inheritance. This could be a matter of life or death if a child has a drug addiction. It can also preserve family assets for grandchildren if the child has a gambling issue or a greedy spouse.
If you are going to disinherit a child, be sure to review your entire estate plan thoroughly with your advisors. In addition, you want to avoid probate. In most states if a will needs to be probated, all your children will receive notice of the court proceeding even the disinherited ones. This is because they are your heirs and are entitled to notice under the law. You can avoid a court hearing by transferring your assets to a trust during your lifetime and having assets pass by beneficiary designation where possible.