Whether or not we plan to do so, each of us will face death eventually. However, by planning we can make our passing easier and better in many ways for those we leave behind. The first article in the series demonstrated how you could gain privacy from the public by planning and using a trust rather than going through the public probate process. The second article in the series focused on how you can make the transition better through the manner in which you leave your assets to your loved ones. The third article in the series focused on the importance of communicating your plans to your family to avoid problems after your death. This final article in the series looks at the thorny issue of disinheriting a child.
Under the laws of most, if not all states, if you die intestate (i.e., without a will), some or all of your property would go to your children who survive you. If you leave a will, but forget to mention a child, in most states the omitted child would receive the same share as if you had died intestate. But you can decide to leave nothing to a child.
However, especially if the disinheritance is a surprise, your child could have hurt feelings and could challenge your estate plan by claiming you did not have the mental capacity to make the plan or by claiming you were under undue influence from someone else.
There are a couple of ways to lessen the risk of a challenge. As discussed in a prior article in this series, discussing your plan with your family will go a long way to reduce the risk of a challenge. Another way is to include a “no contest clause” in your plan. Such a clause provides that if the person challenges your plan, they get nothing.
Of course, in order for the no contest clause to have any deterrent effect, you would need to leave that person something so they would stand to lose something by contesting the plan.
For example, Betty has $3 million and has three children, Sue, John, and Alice. For good reasons, Betty decides to leave her assets to Sue and Alice and wants to leave John nothing. If she were to do that, John would be able challenge the plan. While he may not win, he could cause a great deal of turmoil. If instead, Betty were to leave John $100,000 and inserted a no contest clause, John would have to think twice before contesting. If John were to contest and not succeed, he would receive nothing. However, if he just walked away, he’d receive $100,000. Thus, in that scenario, Sue and Alice would each receive $1,450,000 and John would receive $100,000. Family harmony could be preserved to the extent possible. The family could be spared the financial and emotional drain of a protracted dispute.
There are countries in which you cannot disinherit your children. With rare exceptions (such as in Louisiana), you can disinherit your children in the United States. However, you should proceed with caution. It’s best to let your family know of your plans and the reasoning behind them. Even if they may not agree with your decision, they would be more likely to know the plans are your idea and respect them. Consider inserting a no contest clause in your plan as a deterrent to a contest of your plan. Finally, a no contest clause really has no deterrent effect unless there is a significant, although diminished, bequest to the person you’d be disinheriting.
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128