Can I Disinherit a Son or Daughter?
Family feuds and strained relationships between parents and children sometimes lead to estrangement and may even result in thoughts of disinheritance. But can you disinherit your son or daughter? The short answer is: “Yes, you have a right to create a will that disinherits your child.” However, disinheriting your children is a bit nuanced.
Everyone has their own reasons for wanting to disinherit their children, and we aren’t here to advise you against doing it. Here at Bochnewich Law Offices, we understand that every family has their unique dynamic and circumstances, so why you want to disinherit your son or daughter is none of our business. We are more concerned about how you’re going to do it.
Our estate planning attorneys serve clients throughout Southern California, including San Bernardino County, San Diego County, Los Angeles County, Riverside County, and surrounding areas.
What Is Disinheritance?
Disinheritance is the act of intentionally excluding someone from your will. In other words, by disinheriting someone – be it your child or another family member – you are denying them any share of your estate. In most cases, this term refers to parents excluding their children, but it can apply to any family member or relative.
Reasons Parents Disinherit Their Children
While disinheritance might seem harsh, there are several reasons why parents might choose this path. These reasons often stem from deeply personal or financial considerations, such as:
Lack of relationship. Sometimes, parents and children become estranged, and this lack of a relationship may lead parents to exclude their child from the will. In such cases, the emotional distance can be a major factor in making this decision.
Financial irresponsibility. Parents may worry that an inheritance will be squandered if a child has a history of irresponsible behavior, substance abuse, or poor money management. Disinheriting them may seem like a way to protect the estate from being wasted.
Giving preference to other family members. In some instances, parents may want to ensure that other family members, such as their ex-spouse or a disabled sibling, receive adequate support. Disinheriting one child can be a way to allocate more resources to those in need.
Dispute or conflict. Ongoing disputes or conflicts between a parent and a child can lead to disinheritance. This could be due to differing values, lifestyle choices, or unresolved grievances.
Previous financial support. Parents who have already provided substantial financial support to one child during their lifetime may choose to disinherit that child in order to balance the distribution of assets among their other children.
Specific wishes. Some parents have specific wishes or causes they want to support through their estate. They may choose to disinherit a child to allocate more resources to charitable organizations or other beneficiaries.
Regardless of what your reasons for disinheriting children are, we trust you that you know what you’re doing. After all, you are the one who gets to decide what happens to your hard-earned assets after you’re gone and it is your right to distribute your assets as you see fit.
Does the Law Require You to Leave Anything to Your Children?
Different jurisdictions have varying laws, and it's important to know what you can and cannot do when it comes to excluding a child from your will. In many places, parents are not legally obligated to leave anything to their adult children. However, minor children often have legal rights to a portion of the estate, regardless of the parent's wishes.
Some jurisdictions have laws that protect children from being completely disinherited. For example, certain states in the U.S. have "forced heirship" rules that ensure children receive a minimum share of the estate.
Given the complexities of estate law, consulting with an attorney in your state is essential to ensure that your will is legally sound and that your wishes are carried out as intended. An attorney can help you understand your rights and obligations regarding disinheriting children and other matters.
Ways to Legally Disinherit a Child
If you decide that disinheritance is the right choice for your situation, there are specific steps you must take to ensure it is done legally and effectively.
Explicitly state the disinheritance. To disinherit a son or daughter, you must explicitly state your intention in your will. Vague or indirect language can lead to misunderstandings and legal challenges.
Update your will regularly. Regularly reviewing and updating your will ensures that your intentions are clear and current. Life changes, such as the birth of a grandchild or changes in your relationship with the disinherited child, may require changes to your will.
Consider a no-contest clause. Including a no-contest clause in your will can deter legal challenges in the future. This clause states that any beneficiary who contests the will forfeits their inheritance, providing an additional layer of protection against foreseeable disputes. In California, the existence of a no-contest clause means a beneficiary would be penalized for filing a pleading in any court (Probate Code § 21310).
For any of these steps, you might want to seek the assistance of an attorney to ensure that your wishes are clearly stated and legally enforceable.
Alternatives to Disinheriting Your Child
Disinheritance is an extreme measure, and there are alternative approaches that might achieve similar goals without the emotional and legal repercussions.
Conditional bequests. Instead of disinheriting your son or daughter outright, consider making their inheritance conditional. For example, you might require them to complete certain milestones, such as finishing college or attending financial counseling.
Trusts. Setting up a trust can provide more control over how and when your child receives their inheritance. Trusts can include conditions and stipulations that safeguard the assets while still providing for the child.
Lifetime gifts. Providing gifts during your lifetime allows you to support your child without including them in your will. This approach can also reduce the size of your estate and potentially lower estate taxes.
If you are thinking of disinheriting your son or daughter, you might want to discuss the various alternative options before you finalize your will.
Legal Rights of Disinherited Children
Disinherited children may have legal recourse depending on the jurisdiction and circumstances. Understanding their rights can help you prepare for potential challenges.
Contesting the will. Disinherited children can contest the will if they believe it was made under duress, fraud, or undue influence. They may also challenge the will on grounds of incapacity if they believe the parent was not of sound mind when it was created. If they do, they may ask the court to determine capacity.
Family provision claims. In some jurisdictions, disinherited children can file a family provision claim if they believe they were not adequately provided for. Courts will consider various factors, including the child's needs and the parent's intentions when processing a family provision claim.
For both parents considering disinheritance and disinherited children, seeking legal advice is crucial. Since everyone’s situation is unique, an attorney can provide guidance on the legal options and potential outcomes based on the specific circumstances.
Want to Disinherit Your Child? Contact Our Attorneys
Decisions regarding disinheritance – especially when it’s your son or daughter who you want to leave out from the will – can be tough. That’s why you don’t want to approach such a delicate matter without an attorney. Our attorneys at Bochnewich Law Offices are here to assist you with drafting your will in a way that ensures that all your wishes are legally carried out. We can explain how to best accomplish disinheriting a child in your will and what pitfalls to avoid when you do it. Schedule your free case evaluation to discuss your particular situation.