An inheritance is not a right – anyone may chose to disinherit a child - but at what cost?

A person who wishes to leave assets to family members in different proportions other than equal may do so under the law. However, one person who may not be disinherited is one’s spouse, and each state has its own rules as to what percentage a spouse may receive if he or she is disinherited from a will. Normally, the percentage is based on whether there are children born of the marriage, other heirs of law of the decedent, and the amount of money that is otherwise left to the surviving spouse under the terms of the will.

Nevertheless, a person need not leave money to any other individual under the law. If this is going to be the case, then a specific omission of that particular individual and possibly their offspring and spouse should be specifically directed within the will or trust. Their names and addresses should be provided so that when the testator dies, the information will be available to the attorney probating the estate to provide the formal notice as required.

In addition, at the first meeting with the client, the lawyer will hopefully take sufficient notes so that there will be a paper trail of the reasons for the omission of the family member. The reasons may be as varied as the family growing apart, not caring for the spouse of a child, a child who has a disability, or there may not have been any communication and respect for the parent, which will negate any bequest to the surviving child.

In the event that the attorney is not available to testify at a hearing due to the fact that perhaps he or she has retired, passed away, or merely closed their practice, notes should be kept that, indicate that from the first meeting through the signing of the document, the client was consistent in their goals and intentions to omit a particular family member, friend, or charity. The information causing the omission of a family member should be specific, clear, consistent, and accurate.

In some states, there is a clause known as a no-contest clause that may be included in the document, so that if the family member contests the will, even if successful, they would receive no bequest. However, some states have determined that this is not an enforceable law, and they have made efforts the change in the law, which may affect any property, regardless of how it is held at the time of death.

However, if a person is specifically omitted and the no contest clause is added, there is no incentive for the beneficiary to waive the contest. On the other hand, if a specific amount is left to this beneficiary, and if the beneficiary were to object and lose, they would also lose the specific bequest as set forth in the estate planning documents. This will hopefully deter a person from contesting a will and allow the estate to proceed.

It is important to consider the feelings among all parties when treating family members unequally. For example. an attorney may ask a client if it is fair to penalize a successful child by leaving them less. A client should also be informed that when they pass away, if there is a contest, and the children fight amongst themselves, there will be no parent to act as referee.

It is always important to consider each personal situation to determine whether or not it is appropriate to leave unequal shares to beneficiaries upon death. The preservation of inter-family relations is often as important as the financial gains, especially after the death of the parents.

By: Hyman G. Darling, Esq.