As much fun as it is to write about generational wisdom, unfortunately many families have different challenges that are not so heart-warming. Although technology has allowed us to stay connected across the globe, we still live in a time where many relationships are fractured and families are torn apart. Maybe your family is struggling with a son or daughter that has an addiction, or maybe your blended family didn’t truly blend as you hoped for.
Regardless of the situation, there may come a time where your broken relationship may lead you to feel like you need to disinherit a child or grandchild due to their actions. Removing them from your estate plan is not an easy decision and normally does not come lightly. When the time arrives to put the change into effect, be sure you are properly guided and all the detail work is completed.
Completely disinheriting a child or grandchild should be reserved for specific circumstances. Before taking this action, it is essential that you seek the guidance of an experienced estate planning attorney in your state. You must make the effort to be clear about your wishes in order to not leave your loved ones with a lawsuit (which is almost a certainty anyway) or other conflicts after you are gone. If you are considering disinheriting a child or grandchild, you should read and take heed.
For you or for them?
There are sometimes good reasons to disinherit a child or grandchild. Punishing a child or grandchild for lifestyle choices you do not agree with is usually not one of those reasons. Before taking this action, look at yourself in the mirror. Are you doing what’s best for them, or for you? Instead, consider if it may be time to release your need to control the people you love with your assets and recognize that each person deserves to be accepted and loved for the choices they are making. This can be a difficult decision to make.
If the lifestyle choice is something like a drug, alcohol or gambling addiction, which could be exacerbated by an inheritance, consider creating a trust that would allow your assets to be used for treatment programs. Conditional access to trust funds could be used not only to incentivize treatment, but also to keep the beneficiary on the road to recovery. We can help you draft appropriate provisions into your trust to address a scenario like this.
Trust vs. Will
Movies and TV shows have led us to believe that we can simply scratch off the name of the heir from our will and they won’t receive a penny from us. Such notion is not necessarily true. Yes, you can remove their name from your will but more likely than not, the Will can be contested, and the disinherited family member could possibly end up with their share of your estate. The challenging of the Will is why we recommend that you do not do this on your own. There are many steps you should take in order to be protected in the long run and to avoid your family from having to go through long and costly legal procedures.
If you de decide to disinherit a child or grandchild, you should consider documenting your capacity and that you are making the choice to disinherit based on your own free will. One of the most common legal arguments for the disinherited family member is to challenge the disinheritance with a claim that you were suffering from incapacity or duress. There have been instances when a mom disinherits her son. The son can then challenge the Will and claim that her new husband put her under “undue influence” to remove him from the will. Although this decision was the mom’s and not the step-father’s, this can be a viable claim and could lead to the son receiving his portion appointed by the court.
On the other hand, a trust is not a public document like a Will. A well-done trust is a private document and, in most states, only the beneficiaries of the trust can challenge the provisions set forth in the trust.
Reasons to disinherit
Often, the idea of disinheriting a child or a grandchild is considered because of a concern that the beneficiary might spend their inheritance frivolously. The other usual reason is that the beneficiary’s spouse should never get their hands on the money. The good news is that there are methods to protect the legacy you intend to give to your family. In either scenario, disinheriting may cause more problems than it solves.
Some might think it is heartless to disinherit a beneficiary with special needs. Considering some of the cruelty we see in the media, it’s not unthinkable that people might choose this course of action. Fortunately, there is a more common reason that people write their special needs children or grandchildren out – they want them to qualify for government benefits. Indeed, planning for Medicaid or Veteran’s Benefits must be done carefully. If you are considering disinheriting a child or grandchild because they have special needs issues and you want to ensure they qualify for governmental benefits, contact us because we can create workarounds to ensure that your inheritance can be used for their support and they can qualify for governmental benefits.
To genuinely disinherit someone, you must document it. There’s a good chance that even with explanations, someone is going to challenge it. Finally, if you truly do want to disinherit a child or grandchild, be sure to do it very carefully so as not to create unnecessary family conflict. We do not recommend attempting to do this on your own.
After you’ve made these difficult decisions, make sure you review your estate plan every 1-3 years to ensure your wishes still align with your legal documents. Families are dynamic, so you should refresh your estate plan at regular intervals or after significant changes in your family take place, such as births, deaths, or marriages.
Working with us when considering disinheriting a child or grandchild will ensure you make the wisest decision and that your wishes will be followed when you die. If you are considering this significant decision, meet with us for guidance.