There is no shortage of parents who, as they think about estate planning, consider disinheriting a child. If you have teenagers, maybe you have considered it in passing on more than a few occasions 😉 Joking aside, there can be any number of reasons to consider writing a child out of your will.
If you have a substantial estate, perhaps you fear to spoil your child by essentially giving them a free pass on earning their own living, and developing their own talents and skills. If you have a child who struggles with addiction or impulsivity, perhaps you want to avoid enabling them to continue down a destructive path. Or maybe you have not spoken to your child in years. Who knows?
People have a number of reasons for wanting to disinherit a child. If that is a path you are considering, here are some things to take into consideration.
First, is there another way to achieve your aim?
Before you change your will, give some thought to your reasons for wanting to disinherit your child, and consider if there is another way to achieve your aims. Because despite the best-laid plans etc. etc., if you disinherit a child, there will likely be a lot of bad feelings plus a court battle after you die.
There are a number of motives you may have for disinheriting that could have better solutions. For instance, if you are considering not leaving your child an inheritance because you think that they are financially stable, consider that fortunes change, and even your child’s current situation may not be what you think it is.
If your child struggles with addiction, consider that they may one day overcome their addiction. You can set up a trust for them and set the conditions you choose on the distribution of funds from the trust.
If you are considering disinheritance because your child has a disability and you do not wish to jeopardize their government benefits, consider setting up a special trust that can supplement their needs without affecting their benefits.
Lastly, if you are considering disinheriting a child as a way to get back at them, to have the last word, or to otherwise show your disapproval, consider that deliberately leaving them nothing is unlikely to positively change their behavior, and may just make them feel unloved and resentful.
Second, is it possible?
If your child is an adult, you can disinherit them in almost all states. But if your child is a minor or you live in Louisiana, you will have a harder time. A number of states have protections for children under 18 who lose a parent so that their residence is not left to someone besides the spouse or minor child, for example.
In Louisiana, children under 24 or any child who is physically or mentally incapable of caring for themselves is prohibited from being disinherited under state law. For children 24 or older who are able to care for themselves, they may be disinherited, but it must be for one of the “just causes” provided for under state law.
So if you live in Louisiana or want to disinherit a minor child, check your state laws first to see if it is possible.
How to do it
Regardless of the above, there are certainly situations in which it is necessary and prudent to disinherit your child, and you are entitled to do so. If you do, make sure you do it the right way. Otherwise, your child could end up contesting the will and receiving the inheritance that you never intended for them to have.
1. Create a will.
This seems self-evident, but it is important to know why. If you do not make a will, your estate will be passed on through intestate succession. In most states that means that your estate will be divided among your spouse and children. So write a will, and make sure that it is kept in a secure place and that your executor knows where it is.
2. Make it clear that your child is being purposely disinherited.
The best way to do this is to acknowledge your child by name in the will and state, “For reasons known to me, I make no provision for (child’s name) and/or the child’s lineal descendants.”
It’s better to use this wording, “for reasons known to me,” because if you name a reason in the will, your child may use that to challenge the will. For example, if you state in the will that you are not leaving your child an inheritance because they have enough money for their needs, they may contest the will by trying to prove that they do not have enough money for their needs.
Some people want to leave their child a tiny amount of money in their will, $1 for instance, to acknowledge the child but give them almost nothing. If you want to actually disinherit them, this is not the best idea. Leaving them anything at all means that they will have the right to information about your estate without going to court. Plus, the $1 must be delivered, accepted, acknowledged, and filed with the registry—it just creates more work and possibly delays in administering your estate.
3. Let them know.
If you have not been in contact with your child for many years, it will probably not come as a shock to them if they are not included in your will. But in most cases, it is advisable to let your child know that they are not being left an inheritance, especially if you have other children who will be receiving an inheritance.
One reason for letting them know is to try to prevent bad blood between siblings, if possible, and to possibly ward off a will contest.
4. Change your will if you change your mind.
One last thing to consider is if you write your child out of your will, but you reconsider at some point, do not forget to update your will. That could be devastating for your child if your relationship is repaired but the will is never updated—and it’s not really about the money.
Leaving your child an inheritance, whatever it may be, has meaning beyond whatever the inheritance is worth—it has symbolic meaning. So if things change and you change your mind, don’t forget to update your will.
And, remember, Tomorrow is not a law firm and we do not provide legal advice. When in doubt, talk to a licensed attorney in your area.