26th Jun 2014

Generally parents want to make certain that all of their children are provided for equally.  However, that is not always the situation.  Many times parents help certain of their children more during their live times than their other children, with the full intention of evening things out in their Will.  Oftentimes a parent may want to totally disinherit a child due to the child’s conduct, or the relationship between the parent and the offspring.  It is important to remember that, with a general limitation relative to minor children, you are not obligated to give anything to anyone.  Your decisions on this issue are yours alone.  Whatever the reason, disinheriting a close relative–especially a spouse or a child–can be complicated.

With respect to a surviving spouse, certain state laws may limit your ability to completely disinherit a spouse.  Even if you don’t leave your spouse anything in your will, most states have laws that allow a spouse to a portion of the marital estate.  For instance, if you live in a “community property” state, your spouse is considered, under law, to own one-half of the community property.  Even in non-community property states there are laws which automatically entitle a spouse to portion of your estate.

What if your spouse has their own, non-marital property?  Even if you don’t completely disinherit your spouse, he or she can make an election after your death and choose between taking what the will provides, or taking what the law in your state says a spouse should receive (the “statutory share,” is typically one-third to one-half of the estate). The only solution is to enter into a written agreement, supported by consideration, with your spouse in which you each waive the right to receive anything from the other’s estate.

When it comes to disinheriting a child, that is a completely different story.  Prior to attempting to disinherit a child, there are several steps you should take, including checking with an estate attorney in your state to determine if specific language or other requirements are necessary.  For example, Louisiana does not allow an adult child to be disinherited.  Although it is not obligatory to leave anything to anyone, including adult children, many states have certain limited requirements when minor children are involved. For reasons of child support, and making certain that minor children receive what they would have, had the parent remained alive until the time the child reaches the age of majority, laws have been enacted in most states to protect the vulnerable minor child. . There are, additionally, laws which protect children born after a will was written, as an unintended omission by the parent.  Nevertheless, it is possible to disinherit a child, or children and leave them nothing, if that is your desire.  In order to do so, you should specifically mention the child in your will, recognizing that you know that the child is your child, and proving that you made a mistake by not including the child’s name in your will.  It is generally, also advisable, to state the reason the child is getting nothing or a reduced amount, but it is not necessary to do so.  If you don’t mention a child at all, the state may conclude that you did not intentionally exclude the child.

Accordingly, if you are considering disinheriting a close relative, spouse or child, be aware that such action may cause fights between family members which can last for years.  For this reason you want to be specific in acknowledging your progeny and take as many precautions as possible to specifically set forth your desires regarding your desires.  Many times acknowledging the existence of someone you are disinheriting, and giving them $5.00 and nothing more, can avoid potential litigation.  Consult a qualified estate planning attorney in your area for more information on this topic.

Steven A. Christensen, Senior attorney Christensen Young & Associates, PLLC

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