I recently sat with a client who wanted a new Will and was looking to give money to some of her children because they were having financial trouble. She also had a child who was doing very well financially, and she figured it would be fair to take that child’s share and divide it among the other children who needed assistance. The client asked if she could leave to some of the children and not the other? Although there is nothing legally or inherently wrong with this type of request, there is a potential for trouble both for the estate and the emotional harm to a child when one is disinherited from a Will.
In most states a child will inherit from his/her parents if they are named in the Will or the parent dies intestate (without a Will.) Otherwise, they have no real legal right to inherit from the parent(s). However, a potential problem that can arise is that a child can contest a parent’s Will, claiming that the parent forgot to mention the child or was under undue influence, duress, or not of sound mind when the parent made the Will. That is why it is important to address the “disinheritance of a child” in your estate planning documents. By identifying the child and making it clear that the child is not to inherit from the parent, there is little to no room for the child to contest.
With regard to the emotional harm, parents should know that even if a child is financially stable, there is a symbolic meaning to receiving something from a parent’s estate. If you choose to disinherit a child, you should consider explaining it to the child so that he or she understands you mean no ill will to them, and that you are merely trying to help.
If you choose not to disclose what you have in your Will, then make sure you address the child in the Will to avoid any legal claims, and/or leave a letter explaining your decision for disinheriting the child so that they can have some understanding as to your last wishes.
Remember, estate planning is the process of planning for the management and disposition of one’s estate when they die. It is also the process of stating your last wishes and desires to loved ones. In order for people to understand what you were thinking at the time of your planning, you need address it in a manner that best fits your situation, as well as accounts for and gives clarity to the family with regard to what you were thinking, and the good intentions you had at the time.