Estate Planning - Can I Disinherit My Children ? - Phoenix, Arizona

Can I Disinherit My Children?

Although some may find the question offensive, can you actually disinherit a child? The answer is yes in most situations.  In that regard, you can disinherit a child under most states’ laws, but you must understand the limitations and associated factors if you are considering this option to determine Can I Disinherit My Children?

Even though you can disinherit a child, Arizona and Nebraska law does not allow parents to disinherit minor children. In short, you cannot effectively disinherit a child until they reach the age of majority (eighteen in Arizona and Nebraska).

Why might someone consider disinheriting a child?

People consider disinheriting a child for various reasons that include: (1) an estranged relationship that causes the parent to consider not passing on money or property to that child; (2) if an adult child has accumulated sufficient wealth and does not need additional wealth from the parent; or (3) the parent is worried that the adult child will misuse a future inheritance, especially if the child has squandered the wealth provided thus far.

Regardless of why a parent may consider disinheriting a child, it is typically a poor idea to use disinheritance as a tool to manipulate a descendant or other beneficiary. For example, a disinherited child may be extremely disappointed or angry and cause turmoil within the family after losing an inheritance. The child could, in turn, attempt to challenge the validity of your will or trust documents. A challenge to your will, trust or other important documents could result in a court proceeding that could delay the rest of your family’s access to their rightful inheritances and be expensive.

A no-contest clause, also called an in terrorem clause, is one legal option that can help avoid challenges to a will. The clause states that if someone challenges the validity of a will or trust and loses the challenge, they will also lose the inheritance they would have originally received. However, some states have carved out various exceptions that make it difficult to apply this type of clause successfully. With these potential problems, it is important to explore alternatives for you and your family through a qualified attorney.

What are the alternatives to disinheriting a child?

As a parent, you have a number of options on the transfer of your wealth. It is not an all-or-nothing situation in which you must give everything to your child all at once, or not give anything to your child at all, ever. One option is to structure your estate plan to grant your child a minimal amount. The benefit of leaving something small is that it makes it more difficult for a child to argue that you intended to disinherit them by providing proof there was the intent to leave something to the child. In addition, providing a small amount to your child under a will or trust may discourage a legal challenge because your child will lose something if their challenge is unsuccessful. In contrast, if your child has nothing to lose because they are not going to receive anything, there is no disincentive to prevent a challenge to the will or trust.

Another option for distributing your money and property is to hold the money and property in a protected trust, with a trusted person or entity serving as the trustee, and provide small amounts to the child over time. You can tie these distributions to your child’s age or particular achievements, such as graduating from college or staying away from alcohol or drugs for a designated time. You can provide these incentive-based payouts for the child you still want to support, but who has given you cause for concern about their use of the funds.

Finally, you can create a trust, appoint a trusted person or company as the trustee, and allow the trustee to use their discretion as to how and when the money and property will be used for your child. Your trustee can be a person who has proven that they can handle the responsibility of managing the assets without succumbing to pressure from your children or the temptation to misuse the funds. These options provide alternatives that allow you to control how you distribute funds to your child. However, if these options do not adequately address your situation, you can still disinherit your adult child.

How do I disinherit my child?

If you remain interested in pursuing this route, the most important step you must take is documenting your intentions in your estate planning documents, including your will or trust. If you fail to document your wishes adequately, your child could receive a portion of your money and property under the state’s default rules. Consequently, any property that is not distributed using proper estate planning methods, such as the valid execution of a will or the lawful creation of a trust, will be distributed according to the state’s intestacy laws.

Additionally, even if you create a will but merely omit your child’s name without clearly stating your intent to disinherit them, you are setting the stage for the disinherited child to challenge the validity of your documents and claim that it was an accidental omission.

Call our office.

We hope our article “Can I Disinherit My Children?” provided you with valuable information.  Even so, decisions regarding how you want to pass your money and property to your children after you die can be tough, and ensuring your desires are legally carried out can be complicated. However, you don’t have to face that difficult decision alone since we have experienced attorneys dedicated to helping people like you protect your legacy and your loved ones. If you questions about your options or are ready to put your estate plan in place, call our office to schedule a virtual or in person meeting today.