Estate PlanninG

Do I Have to Leave Anything to My Children?

It may be the case for you that you don’t wish to leave anything to one or more of your children. You might have an estranged relationship with them, or maybe one of your children has accumulated enough wealth in their lifetime and don’t need additional wealth from you. Or maybe you’re worried that your child will misuse a future inheritance, especially if they have a history of squandering wealth.

In most circumstances, it’s entirely possible to disinherit a child. The law, however, doesn’t allow parents to disinherit minor children (Louisiana being the one exception). In other states, you cannot effectively disinherit a child until they reach the age of majority (18 or 21, depending on the state).

Regardless of your reasoning for disinheriting your child, it’s typically not a good idea to use disinheritance as a way to manipulate a descendant or other beneficiary. For obvious reasons, the disinherited child may be angry or disappointed and cause turmoil within the family. They could attempt to challenge the validity of your estate planning documents. This type of challenge to your will or other documents could end up in a court proceeding that could delay the rest of your family’s access to their rightful inheritances.

Challenges to a will might be prevented with the help of a no-contest clause, also called in terrorem clause. The clause states that if someone challenges the validity of a will or trust and loses that challenge, they’ll also lose the inheritance they would have originally received. This clause isn’t available in all states, however - Florida being one example. Additionally, many states have various exceptions that make it difficult to apply for this type of clause.

Alternatives to Disinheriting a Child

It’s your wealth, and you have multiple options for how you can transfer it. You don’t have to give everything to your child at once, or even at all.

One option is to set up your estate plan in a way that grants your child a minimal amount. This makes it difficult for a child to argue that you intended to disinherit them. Leaving a small amount under your will or trust may discourage a legal challenge because they have something to lose if their challenge is unsuccessful. Whereas if your child was set to receive nothing and they lose the challenge, they’re still in the same position they were before.

Another option for distributing your assets is to hold them in a protected trust, with a trusted person or entity serving as the trustee, and provide small amounts to your child over time. This is a good option for a child who has given you cause for concern about how they spend money. For example, you can tie these distributions to your child’s age or particular achievements, such as graduating from college or staying away from alcohol or drugs for a designated time.

Finally, you can create a trust and allow your trustee to use their discretion as to how and when your assets will be used for your child. This trustee can be a person who has proven they can handle the responsibility of managing the assets without succumbing to pressure from your children or the temptation to misuse the funds. Read more about choosing a trustee here.

If none of these options adequately address your situation, you can still choose to disinherit your adult child.

How to Disinherit Your Child

If all else fails and disinheriting your child is the route you’d like to pursue, make sure to document your intentions in your estate planning documents, including your will or trust. If you don’t adequately document your wishes, your child could receive a portion of your money and property under the state’s default rules. Also, any property that is not distributed under proper estate planning methods will be distributed accordion to the state’s laws.

Additionally, if you create a will where you merely omit your child’s name without stating your intention to disinherit them, you’re making it easy for the disinherited child to challenge the validity of your documents and claim that it was an accidental omission.

When in doubt, seek professional help.

These decisions aren’t always straightforward, and your situation may be unique to the ones we’ve mentioned here. Even if you know exactly how you’d like to proceed, making sure your decisions are legally carried out can be complicated.

You don’t need to face these challenges alone. Our team of experienced attorneys are ready to help. Give us a call today at (888) 698-3951 to set up a free consultation.