Disinheriting a child in a will can be tricky. You have every right to do so, of course, but your action will be seen by outsiders as unnatural. That is why you want to take the right steps to make the disinheritance stick.
While no method is litigation-proof, there are a couple of strategic points that you may want to consider.
Make Your Intentions Clear on Disinheriting
You want to be clear in the will about your intention. That means making an affirmative statement that you have intentionally disinherited that child. This strategy is preferred to merely omitting naming the child in your will, because that child could later argue that his omission was not by intent but was, instead, due to a “scrivener’s error” by the will drafter. If the court agreed, then it would write that child into the will and completely defeat your intention.
However, in this instance more is not better. You should resist the temptation to write more into your will than the bare affirmative disinheritance statement. Your will is not an appropriate platform to explain why you are disinheriting your child. Doing so may expose your estate to a defamation lawsuit, and could even open the door for that child to argue that you were suffering from an undue influence, did not have capacity, or were laboring under an insane delusion.
You should not, however, keep your reasons to yourself. This is information that the attorney who drafts your will desperately needs. It will be up to the drafting attorney to defend the will in the event your child decides to contest it. And while you do not need any reason to disinherit someone, having a good reason will go a long way towards making the disinheritance stick.
Reasons for Disinheritance
As to what type of reason is considered a good one, there are a lot. One of the best is that your child has ceased contact with you and the estrangement is long-standing. Other great reasons (not in any particular order) are that your child is guilty of felonious conduct like murder or child abuse, has physically or mentally abused you, is a drug addict, has already received a big gift from you, or is just generally a bad person.
Regardless of the reason, share it with your estate planning attorney. Give details and make sure the attorney is taking notes.
You want to make sure that your will includes definitions for “issue” and “descendant,” and that those definitions specifically exclude the disinherited child.
Include A “No Content” Clause To Your Will
You should also include in your will has a “no contest” clause. This clause punishes anyone who tries to contest your will. However, the clause has its limitations, both by statute and in practical terms. You do not want to rely completely upon it.
You may be tempted to thwart your disinherited child by actually leaving him some token amount in your will that he would then lose if he contested your will. This is usually a bad idea because it gives your child a seat at the table in the probate action.
Finally, look at accomplishing the same thing through probate alternatives like beneficiary designations, survivorship agreements and trusts. These are harder to contest.
Estate Planning Attorney Near Lewisville, TX
Virginia Hammerle has been president of Hammerle Finley Law Firm since 1984. Their practice includes estate planning, probate, litigation, business law, real estate and family law. Contact at Hammerle.com or legaltalktexas.com.