In all states except Louisiana, a parent may legally disinherit an adult child, provided the parent transfers his property to someone else during lifetime or leaves his property to someone else under a valid will. This article discusses the pitfalls a parent must avoid and the steps a parent should take for an effective disinheritance of a child.
If a person dies without a will, any property not disposed of during life will pass under the intestate succession rules. Each state has a statute that specifies the order of priority in which property of an intestate decedent is distributed. In general, after a decedent's spouse, the children have priority over other heirs. For example, assume a wife died survived by her husband and two children. A typical share of a surviving spouse is $60,000, plus one half of the balance. The remainder would pass to the two children in equal shares. The intestate distribution scheme is mandatory. The wife cannot disinherit her children if she dies intestate.
Statutory Protection for Minor Children
In a few states, special rules limit the extent to which a parent may disinherit a child.
Homestead laws. Some states protect children under 18 from the loss of a family residence. For example, the Florida constitution prohibits the head of a family from leaving his or her residence to anyone other than a spouse or minor child if either is alive.
Civil Code in Louisiana. Louisiana law, which is based on the civil law system, protects forced heirs from disinheritance. Forced heirs are children under age 24 and children of any age whose physical or mental incapacity renders them incapable of taking care of their own affairs. Children who are age 24 or over with adequate physical and mental capacity can be disinherited by a parent for one or more "just causes" listed in the Civil Code. The parent must specify the particular just cause in the will in order to have the disinheritance enforced.
Pretermitted heir statutes are designed to protect children who may have been inadvertently left out of a parent's will. If a testator fails to provide for any child born or adopted after the execution of the will, the child is entitled to receive his or her intestate share, unless it appears from the will that the omission was intended by the parent. The state statutes vary considerably concerning the scope of a pretermitted child's protection. To avoid any confusion, parents are often advised to review and, if necessary, update their estate planning arrangements after the birth of a child.
Referring to the Disinherited Child in the Will
When a child is disinherited, the parent should expressly state in the will his or her intention to omit the child. A simple statement is sufficient, such as, "I intentionally leave no provision under this Will for my child, Jane Doe." Whether the parent should also state the reason for the disinheritance depends on the particular circumstances. Some parents prefer to state that they are omitting the child because the parent has adequately provided for the child during lifetime. A child may be disinherited due to an estrangement or because the parent believes the child is well off and does not need anything from the parent's estate.
There are good reasons, however to consider leaving the reason for the disinheritance unstated. First, the omitted child may try to use the stated reason as a basis for challenging the disinheritance. For example, if the will states that the child was adequately provided for during the parent's lifetime, the child may disagree and try to use the statement to challenge the intent or capacity of the parent. Also, a parent is well advised to refrain from making unduly harsh statements about the omitted child. The disinheritance speaks for itself; there is no need to "speak from the dead" in a manner that would be unduly hurtful to the child.
Alternatives to Disinheritance
Sometimes there are ways to alleviate a parent's concerns in a manner that is less drastic than disinheritance. For example, assume a child is a long-time drug addict and the parent feels that the child would spend any amount from the estate on more drugs. In lieu of disinheriting the child, the parent may establish a trust for the child's benefit. The trustee can use the principal and income to meet the child's needs, but the child would not have any control over the trust property. Another possibility is to leave the share of an adult child to his or her children. If the grandchildren are minors when the will is made, the will can provide for a trust to take care of the property until they reach the age of majority.
Parents sometimes fear that they must disinherit a special needs child so that the child's government benefits will not discontinued. Rather than omitting the child, these parents can create a "special needs trust," which is specifically drafted so that government benefits will not be affected. The trustee of the special needs trust can use the trust income and principal to provide supplemental support for the child.
The resentment of a disinherited child is right up there with the fury of a woman scorned. Parents should be aware that the child may try to challenge the disinheritance when the parents are no longer present to clarify their intent. Here are the steps that will lead to an effective disinheritance:
1. Make a will. There is no way to disinherit a child if the parent dies intestate.
2. Execute a new will or update an existing will after the birth of any child so that the pretermitted heir statutes do not apply.
3. Expressly state in the will that the parent intends to disinherit the child.
Carla Neeley Freitag is an attorney and published author who provides tax research and writing services to other attorneys. To learn more about the tax research services Ms. Freitag offers, visit http://www.taxresearchandwriting.com/ Her website also contains articles and other resources useful to the tax researcher..