Often we have clients who express that they are in close contact with most of their children, but feel they want to disinherit an adult child due to estrangement. They may not have spoken with this child in years. Sometimes our client is not even sure where their estranged child lives. Maybe the child is still in touch with siblings; maybe not. If you find yourself in this situation, you might be thinking about disinheriting an adult child out of your estate plan. You may be unsure if you are allowed to do this legally. The answer is yes. As long as you have the mental capacity to make a will, you can also change that will. There is no legal obligation in Florida to leave adult children anything or to use equal shares.
Parents might not be trying to punish by efforts to disinherit an adult child. Instead they might want to focus on maximizing the amount to be received by their other children they feel closer to. Whatever the reasons, cutting out an estranged child is a serious and painful decision. But remember that if you reconcile with this child in the future (while you still have mental capacity) you can change the will again to include them. Remember also that you are under no obligation to share the exact details of your estate plan with your heirs. (If you have a spouse, unless there is a pre-nuptial agreement, you should be open and honest with your spouse about your estate plan.) We usually advise clients to keep details private until the documents are operative, at which time the client will be dead. No one likes the bullying that goes along with threats to cut someone out of your will!
If you decide to disinherit an adult child, here are some suggestions to organize your thoughts before meeting with your attorney:
- Consider the effect a disinheritance will have on your other children/heirs. Yes they will get a larger share, but they will also be potentially subject to harassment or accusations from their sibling. Whether they have a good or poor relation with the disinherited child, it will probably be worse when the details are clear about the disinheritance.
- Always mention all children in your estate plan. Note that you are not leaving anything and that this child is not considered a beneficiary. Also indicate if you wish to cut out that child’s children (your grandchildren). Naming them helps prevent a challenge on the basis that you “forgot” them and would have wanted them included had you remembered their existence.
- Do not state the reasons for the disinheritance. There is no legal need to provide a reason. Doing so will be more hurtful, and possibly provide the child information on which to build an estate challenge.
- Do not put in a nominal amount such as $10.00. Despite the small sum, giving this child status as a beneficiary gives her certain rights. If she is angry over being disinherited, she can use those rights to slow down the estate or trust administration process, and prevent your other beneficiaries from getting their inheritances in a timely way.
- A living trust may have some advantages over a will in this situation. A trust is a private document. If you have properly funded the trust, your trustee will be able to administer trust assets without court involvement. A will must be submitted to the probate court. The probate process makes it easier for an angry child to launch an estate challenge.
- Remember that assets with beneficiary designations (life insurance policies, IRAs, etc.) will not have to go through probate or trust administration. These assets, as long as you keep your beneficiary designations up to date, can pass those assets directly to the preferred heirs.
- If you do not make a plan-if you die intestate-your estate will still go onto probate court. Florida intestacy law will then determine who gets your probate assets. The Florida intestacy statute attempts to guess where you would want to leave your money. It is based solely on bloodline. If you have no spouse, your children would take equally, including any who were estranged from you.
When you disinherit an adult child, it can be as painful as being rejected by your child.
Many parents may decide they want to leave their estranged child “something” and plan to name them sole beneficiary of a particular bank account. We do not recommend this course of action for a couple of reasons. First, those funds will not be available to the person administrating your trust or probate. Secondly, the money could be used to pay for litigation challenging your estate plan. Thirdly, although this may have been a small account initially, if you have big expenses such as long term care needs draining your other assets, this account could end being a larger inheritance than your other heirs receive. Fourth, if you have those long-term care needs the assets in this account may need to be liquidated anyway as part of a Medicaid eligibility plan.
If you have not made your estate plan, or have not reviewed it in a number of years, we can help. Just call our office at 239-434-8557 to set up a time to discuss your unique family situation.