You may want to disinherit one of your children for many reasons. Whatever the reason may be, you should consider a few things before you start.
1) Name Your Child in Your Will or Trust
It might be tempting to not even mention the child in your estate plan if you decide to disinherit your child. That would be a mistake. In addition, we suggest mentioning the child in your will specifically, and only then write that you are leaving him/her nothing. This way, a judge cannot assume you gave up the child, and can refer to him/her as a predetermined heir in your will.
2) Use an Incentive Trust to Disinherit a Child
In the event you wish to help your child be drug-free, you might specify that he/she must be drug-free for 24 months before receiving the benefits from the trust. You could also specify that the child must maintain steady employment and provide proof of same to the trustee.
3) Skip Your Child's Gift to Your Grandchildren
Does your child have children? If so, you may want to leave the grandchildren their share, perhaps in a trust or guardianship arrangement managed by another child. That might be more palatable than leaving that family out of the estate.
4) Make Sure Your Decision to Disinherit your Children is Clear
It might be wise to secure from your physicians a letter affirming your capacity to make estate planning decisions, if you feel a challenge may be made to your own estate plan on grounds that you lacked capacity.
5) Don’t Rely on a “No Contest Clause”
While designed to discourage will contests, the common No contest Clause (“NCC”) often included in wills and trusts, standing alone, may not work. The NCC merely says that anyone who unsuccessfully challenges a will or trust receives nothing. It is designed to discourage a beneficiary from trying to get a larger share of one’s estate. However, if you propose to leave nothing to your child at the outset, he/she would have nothing to lose – and potentially a lot to gain – by challenging your plan. For this reason, it would be better to leave him/her something, say, just enough to discourage a contest. He/She would then have something at risk, and the NCC would have a greater chance of achieving its purpose.
Living trusts avoid contests more effectively than wills. First, the disinherited child has no right to see the trust, which is closed off to the public. When you use a will, in which the probate is open to the public, your executor must notify the disinherited child. Second, judges presume you were competent at the time you set up the trust because you had to communicate with someone to transfer your assets into trust. With a will, you simply sign the document.
6) Can I accidentally disinherit a child?
Probably not. The court will consider a child who is not named in the will and survives the testator as an omitted child. Under the statute governing omitted children, an omitted child will receive an amount equal to what he or she would have received had the testator died without a will. However, the court has the discretion to reduce the amount given to an omitted child, or decide that no amount at all is appropriate, if there is clear and convincing evidence the testator intended to disinherit the child.
As always contact your attorney before disinheriting a child.
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