Summary: Many reasons exist for excluded a child from receiving a distribution in an estate plan. In order to make sure this goal reaches fruition, it is important to create an estate plan, in order to ensure your assets are not governed by intestacy laws. Additionally, it is very important to structure the language in your plan documents carefully, in order to avoid giving that disinherited child any opportunity to challenge your plans in court after you’ve passed away.
Family dynamics are much like snowflakes… each one is unique in one way or another. Some families enjoy relationships like the family TV programs of decades ago. For others, situations are more complicated. All of these relationships, both positive and negative, can bear on how you structure your estate plan. Yet, if you intend to leave a child nothing from your estate, you should create your estate plan carefully, so that your desires can be carried out after you die.
One of the most common reasons you might disinherit a child is a failed personal relationship. There are also, of course, reasons you might disinherit a child even if you and your child share a warm personal relationship. Perhaps you gave the child sizable financial gifts during your lifetime. Maybe you made loans to your child that he/she has not paid back and you and your child agreed that, instead of his/her paying you back, the money you loaned would take the place of an inheritance.
The law does allow you disinherit your child, but you must make an estate plan to do so. It is essential that your plan documents explicitly acknowledge the disinherited child’s existence. Your plan documents may state that the disinherited child should be treated as if he/she predeceased you, meaning he/she gets nothing. You might choose to leave that child some nominal amount, like $1, just to make absolutely clear what your intentions are. In some states, though, this is a bad idea, because giving even a distribution of just $1 may give that child the right to obtain information about your estate that he/she could not access.
If you do nothing, the intestacy laws (the laws governing estates of people with no estate planning documents in most states grant a portion of your estate to your children. If you make a plan but do not mention the disinherited child at all, that child could possibly go to court and have a realistic chance of persuading a judge that he/she was “omitted” from your will and that he/she should receive the amount he/she would be entitled to under the state’s intestacy laws.
If you are considering disinheriting your child for financial reasons that might place the inheritance at risk, such as addictions or a failing marriage, be aware that there may be better ways of addressing your family’s issues. The law allows you to create certain types of trusts into which you can put assets for the benefit of that child. These trusts are managed by an outside trustee and your child has no direct control over them, creating an element of protection.