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.
Your will is often the last act you will do (or not do) for your child. I encourage people to use their will to treat their children equally to the extent possible and include all their children. I have seen children reduced to tears by what their parent left them in their will, and others who had difficult relationships with their parents solidified by being cut out. The child was always the outcast of the family, and mom’s will reinforced that. Your will can be used to heal old wounds or to deepen them.
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.
People do not come to the decision to disinherit a child easily and often spend months or years agonizing before making the decision to cut them out of the will. I often counsel clients to think about the child’s siblings and whether disinheriting the child will worsen his or her relationships with siblings. Perhaps including the child in the will can help foster better relationships with his or her siblings in the long run.
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.
Sometimes, someone wants to leave a child out of a will because the child has sufficient assets. For instance, a widow wants to leave all her assets to her daughter Sally because Sally has three kids and is divorced. The widow’s son Billy is cut out because he is a successful investment banker. That situation will work if Billy is fine with this arrangement. Be sure to speak with Billy and make sure that he is on board with this plan and pleased that his sister will be well provided for. Perhaps he is not as well off as his mother thinks he is, or perhaps he will feel slighted if he is cut out. In this situation, full disclosure is the best course of action.
Think long and hard before disinheriting a child. The consequences could have lasting effects on them and it could leave a legacy that you did not intend.”