There may come a time when a child or grandchild's behavior warrants their removal from your estate plan. Such a decision normally does not come lightly, and the person seeking to make the change has often agonized over the decision for several weeks (if not months).
Completely disinheriting a child or grandchild should be reserved for extreme circumstances. If those circumstances exist in your family, it's critical you take the proper planning steps so that your loved ones don't wind up being sued or targeted in another way by the disinherited family member after you are gone.
Am I Allowed to Disinherit Family Members?
Your Will can provide property and security to loved ones upon your death, but it can also exclude a particular person (or persons) whom you do not want to benefit from your estate. However, state law does have certain rules about disinheriting close family members, including:
- Spouses. Florida law specifically prohibits the total disinheritance of a surviving spouse. If you do not specify the amount you wish to leave to your spouse in your estate plan, the court will award your surviving spouse a minimum of 30% of your estate. If you die without a Will or trust, your surviving spouse is entitled to the family home and between 50% to 100% of your estate, depending on whether or not you have children. The only way a surviving spouse can be completely disinherited is through a signed pre- or post-nuptial agreement where he or she agrees to waive the right to inherit.
- Minor children. As parents have a legal duty to support and house their minor children, Florida law prohibits total disinheritance of children under the age of 18. The state's Homestead Laws further protect surviving family members, forbidding you from leaving your residence to anyone other than a surviving spouse and surviving minor children. Finally, surviving spouses and surviving children can claim a right to a "family allowance," giving them funds to live on before the estate is settled.
- Adult children. There are no laws prohibiting Florida residents from disinheriting their adult children. However, if you die without a Will or trust, Florida law gives your surviving spouse and your natural and adopted children the right to inherit your estate. If you have written your Will but did not update it after the birth of additional children, the law presumes that you wished to provide for all of your children. If you choose to exclude one or more children, you must have a Will that clearly states your wishes.
Precautions You Can Take to Ensure Your Wishes Are Followed
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. A trusted estate planning advisor can help you articulate your wishes and include them in a comprehensive estate plan so that your desires—and your beneficiaries—are clear.
If you are considering disinheriting a child or grandchild, we can help you:
- Explain your choices. It is not enough to simply leave a child or grandchild's name out of your Will, as family members could argue that the omission was a mistake. If you want to ensure that your intentions are interpreted correctly, you can include a letter or statement for your executor (or to the disinherited party) explaining why you have chosen to disinherit certain parties. Be sure to document your capacity and that you are making the choice to disinherit based on your own free will, so that the disinherited person cannot claim that you were suffering from incapacity or duress.
- Reflect on your legacy. There are some good reasons to disinherit someone, but punishing a child or grandchild for lifestyle choices you do not agree with is usually not the best course of action. Instead, consider if it may be time to release your need to use or assets to control the people you love 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, but it will ultimately inform the way your family and friends remember you.
- Create a trust. If you are considering disinheriting a child or grandchild because you are concerned that they may not make good use of their inheritance, or could possibly lose the funds to a future spouse or divorce, we can support you by preparing a trust that protects the inheritance. This method ensures the legacy stays in your family, no matter what. If a child or grandchild has a history of drug, alcohol, or gambling addictions, a trust can provide stability without disbursing a large lump sum. You could also allow your assets to be used for treatment programs, which could incentivize your relative to get help and live a better life. We can help you draft appropriate provisions into your trust to address a scenario like this.
- Avoid family conflict. Unexpected disinheritance can lead to family arguments, severed ties, and expensive litigation over your assets. If you truly do want to disinherit a child or grandchild, it must be done very carefully so as not to create unnecessary family disharmony. When the time arrives to put the change into effect, our estate planning law firm can make sure you are properly guided, and all the detail work is completed.
- Provide for relatives with special needs. If you are considering disinheriting a child or grandchild with special needs in order to preserve their eligibility for government benefits, we can create financial structures to ensure that your inheritance can be used for their support.
- Find creative solutions. It may be possible to find an alternative to total disinheritance to avoid hurt feelings or financial distress. Rather than completely excluding someone in your Will, you may wish to leave them a nominal cash gift or a small personal item they always wanted to have.
- Review your plan regularly. 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 have taken place in your family, such as births, deaths, or marriages.
At Yolofsky Law, we don't just draft documents. We help you make informed and empowered decisions about life and death, both for yourself and the people you love. As your Personal Family Lawyer®, we can help you articulate your wishes and legally protect your loved ones for years to come. Give us a call today to discuss your options.