The law presumes under most circumstances that the natural heirs of a person are his or her spouse and children. When an estate plans fails to provide for a spouse or a child, under certain circumstances the law mandates that the omitted spouse or child is nonetheless entitled to a share of the estate. This is especially true where the person marries or has a child after the estate plan was created. Thus, when someone intentionally wants to disinherit a spouse or child an affirmative statement should be made in the estate planning documents that the person creating the estate plan has intentionally and with full knowledge chosen not to provide for the spouse or child.
Several times during the course of my estate planning practice I have had clients tell me that they wanted to disinherit a child. Because disinherited persons tend to see the disinheritance as a personal rejection, I always inquire concerning the motivation for disinheriting the child. Often the explanation given is that the child in question has a substance abuse or other addiction, is receiving public benefits that would be jeopardized by an inheritance, or simply that the relationship with the child is "strained". In the first two instances I can give my clients good news. It is not necessary to disinherit a child just because he or she has an addiction or because public benefits would be jeopardized.
It is possible to draft a subtrust within a trust (or even a will) which provides that any portion of the estate designated for that child will continue to be held in trust for him or her and only doled out under certain conditions. In the case of public benefits, the conditions under which the money can be used must be stated with great specificity.
Under most programs, an inheritance can be used to supplement public benefits to enhance the recipient's quality of life but cannot be used for the basic necessities of life such as food, clothing and shelter. This type of subtrust is called a "special needs" or "supplemental needs" subtrust and should be drafted by an attorney with expertise in this area of the law.
Where someone simply wants to disinherit a child because of an estrangement, the most I can do is help the client to realize the consequences of his or her actions.
Disinheriting a child may go beyond "punishing" the child and result in the disintegration of relationships between siblings, cousins, etc. It is not a matter to be taken lightly.© 2009 by Marlene S. Cooper. All rights reserved.