Can I write my child out of my will?

Yes. If you think about it simple sweetheart wills that give all to the spouse then to the children, but only if the spouse predeceases, effectively initially disinherits the children.

From a historical perspective under old English law a man could only dispose of 1/3 of his “movables” away from his wife and children and generally no conveyance of lands by will was permitted until the reign of Henry VIII.

Many religions have rules or traditions that disfavor the disinheritance of wealth and lands away from the family and in some cases these rules became the law of the land protecting children. Land and homes were very important in agrarian and early industrial societies.

In 1918 the Soviet Bolsheviks abolished inheritance and testate (wills) pursuant to the teachings of Marx and Engels. Within four years the unpopular law was abolished and inheritance reinstated because the government found wills and intestate laws that favor the family encourage hard work and savings for dependents, thus relieving the state of the burden of support. Today Russia and China, communist strongholds, have inheritance laws very similar to those in western Europe.

If a person dies without a will, the intestate distribution scheme established by SC law is mandatory and therefore the parent that dies without a will cannot disinherit his or her child(ren), which is one reason disinherit children are more likely to challenge a will. This happened when the actor Tony Curtis died in 2011 and left everything to his sixth wife and nothing of his $60 million dollar estate to his five living children, including actress Jamie Lee Curtis. Two of the other children challenged his will which was changed in the months prior to his death.

What you can do in a will is very much controlled by the current views of society that are enacted as the law. In the United States you can disinherit a child by will in all states except Louisiana, where the civil law protects minors to the age of 24 and children of any age that lack capacity. In all other states there are separate homestead and support laws for minor and adult disabled children that offer some protection against disinheritance. Also minor children may be able to claim an interest equal to that of other children, if the child was born after the will was written and it appears the parent never got around to adding the child. The latter are known as pretermitted child statutes.

Parents disinherit adult children for many reasons, including because one child is financially successful and another special needs child requires lifetime support. Or a parent might try to equalize the monies or assets he/she has already disproportionately expended on one child due to the advancement of funds for college, a house or business startup. The parent may have provided for the child in another way, such as life insurance or a payable on death account. Sometimes a dependent elderly parent is expressing gratitude for the loving care he or she receives by giving all to the sole-caregiver-child, when the other children live out of state and do not help with daily care. Or the parent does not want to reward the child’s history of poor decision making, an addiction or criminal behavior. Sometimes the child disavowed the parent or family a long time ago by failing to visit, staying in touch or visiting an elderly parent.

In 2012 Gina Rinehart, an Australian mining billionaire, shut her three children out of the family trust because having never worked she believed they lacked the requiste work ethic, skill, knowledge and judgment to serve as trustees. She argued it was in the children’s best interest to be disinherited and forced to work at something to justify their existence.

Whether you should disinherit a child speaks to your knowledge of less drastic estate planning measures, your values and faith, and definitely requires wisdom. Black sheep of the family do sometime overcome addictions and rebuild their lives after jail time. Reconciliations between parents and children may happen when a parent is terminally ill, and grandchildren can change the whole scope of one’s emotions and perspective on leaving a legacy to a black sheep. While revisions to wills are usually possible, it may be too late to amend or write a new will if the testator suddenly becomes incapacitated. Leaving nothing from an estate may further alienate the child from the siblings or the family by sending a permanent message of anger, resentment, lack of love or outright favoritism.

While children are generally considered the “natural object of one’s bounty”, there is nothing illogical, immoral or illegal about disinheriting some children.

 

Disclaimer:  Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client.  No attorney-client relationship is created by reading this column.

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