Although it may sound cruel to disinherit a child in their wills, many people do, and have valid reasons for doing so.
Why Does It Happen? In many situations, parents might feel one adult child is well-off and does not need an inheritance, while, perhaps another adult child is not as financially successful and needs an inheritance much more. Still, a person’s circumstances can change, so be cautious when making such decisions based on that reasoning. Certainly, fair doesn’t necessarily mean equal, but feelings can still be hurt despite the fact that the person making the distribution had good intentions.
In the case of an adult-disabled child, there are much better options available than simply disinheriting that child, and leaving what they would have received to their brother or sisters instead who "will take care of the adult-disabled child's share, because they will know what I want them to do with it." Morally, the siblings may know what you want, but legally, they would not actually have to follow through with sharing what they may receive in that situation... There are many other ramifications with that approach as well! It is far better and less riskier for all involved to explore a Trust for that purpose instead. One common recommendation for protecting an adult-disabled child's share as part of Special Needs Planning for an heir includes a Special Needs Trust, which insures that they receive their share in a way that it is protected for their use without risking the loss of their state or public benefits. For more information on why disinheriting a child with Special Needs is not the answer, be sure to check out this earlier VAElderlaw.com blog article.
More expected reasons for disinheriting someone would be because there is no relationship or a strained relationship or, in certain cases, a single incident has occurred that has impacted a relationship negatively. In all cases of a strained relationship, we inquire with clients as to whether they have taken any steps to try to repair that relationship or to understand the reasons for that rift. For example, in a situation where a loved one is battling cancer, perhaps a child is still a loving daughter, but is simply afraid of dealing with that person's possible upcoming death. Perhaps the reason she has not visited is not out of a lack of love, but out of fear of losing that loved one, and simply not being able or willing to face this fear. Keep in mind that cancer and death are scary for most people, and especially scary for children, particularly younger children.
Not a lot of people may be aware, but children do not have an absolute right to inherit! Regardless of the above reasons listed, it is your absolute right to disinherit your daughter or son if you so wish. But there are other options that may be preferable to outright disinheritance, especially if you are concerned about those decisions being challenged later once you pass.
The 4 Myths of Estrangement
Estrangement looks different for those affected, but research relayed by New York Times health reporter Catherine Saint Louis shows that the experience is more common and complex than we might think. Here are the four myths about estrangement that Saint Louis debunked in her article:
Myth 1. - Estrangement is sudden.
Estrangement is actually a “continual process.” Although it sometimes means a clean break, a fight and that’s it, it can also be a chaotic disassociation, or a relationship that’s on and off again over a period of years.
Myth 2. - Estrangement is rare.
Estrangement is more common than most people realize. In fact, one research study said 12 percent of parent-child relationships in the U.S. are estranged, which is likely a conservative estimate, since the study only observed mother-daughter relationships.
Myth 3. - People become estranged for a clear reason.
Estrangement typically falls into one of three categories, according to St. Louis’ findings: choosing between the parent and someone or something else (a partner, a passion, an identity, a lifestyle, etc.); a difference in values or perceived wrongdoing; or stressors such as domestic violence, divorce or failing health. A combination of two or more of all these factors is also possible.
Myth 4. - Estrangement happens on impulse or whim.
According to St. Louis, “(m)ost of the participants said that their estrangement followed childhoods in which they had already poor connections with parents who were physically or emotionally unavailable.” She believes that estrangement is typically years in the making — resulting of unhealthy relationships that couldn’t be saved.
Let's Talk About Virginia Disinheritance Laws!
When it comes to your children, you do have the right to disinherit them in Virginia and in most other states, but you must be explicit in doing so. If you don’t make your disinheritance explicit, there is room for confusion after you pass. Failing to do so could easily give a disinherited child leverage during court hearings.
- Ideally, your estate planning attorney needs to know about any children early on that you wish to disinherit at the first initial consultation when discussing your documents. In the conversation with your attorney, be sure to explain in detail your reasons for disinheriting an adult child. No actual reason needs to be stated in your Will or Living Trust, but it is a good idea for you or your attorney to prepare a written statement that can be left with your estate planning documents explaining your reasons. If a child's name is left out of a Will and not mentioned at all, pretending that they didn't exist, that child could easily have the whole Will thrown out in court as being invalid!
- There are several instances where disinheriting children in your Will can be invalidated in Virginia, such as undue influence, lack of testamentary capacity, fraud, and duress.
- Though it’s often extremely difficult to prove any of this to the court, you should be aware that there is a chance your children can prove this after you pass.
If A Will Is Challenged (Contesting A Will)
A no-contest clause (also referred to in latin as an in terrorem clause) in a Will or Trust is a provision that states that if a beneficiary under the Will or Trust challenges the validity of the document (or, in some instances, tries to take certain other actions against the executor, administrator, or trustee), that person will forfeit his or her rights to take under the document.
In Virginia, if a person challenges a Will or Trust with a no-contest clause and prevails in that challenge, the court will declare the Will or Trust to be invalid and of no effect (thereby eliminating the effect of the no-contest clause), and a prior Will or Trust (if any) will control the disposition of the assets. if there is no prior document, then the laws of intestacy will control the disposition of the estate, which may not have been what the deceased wanted! So, when a person is considering challenging a Will or Trust that contains a no-contest clause, he or she faces a very important choice: risk challenging the Will or Trust (and, if unsuccessful, potentially losing his or her inheritance), or not take any action and instead accept an estate plan as it was written.
Consider Leaving Something To Your Adult Child, In Case He Or She Contests The Will
If the potential challenger has a sizeable sum of money at stake, he or she will need to carefully think through the merits of the challenge. So, although you cannot do anything to completely prevent the risk of a disinherited child challenging your estate plan, it is sometimes best — depending in part on your age and health, because these things factor into a potential claim of incapacity or undue influence or duress — to leave the child you wish to disinherit enough money to serve as a disincentive for them to challenge your Will or Trust, even if you have a “no-contest” clause, because a no-contest clause is effectively meaningless without a bequest to go along with it that the disinherited person risks losing by filing the contest.
Estate Planning Is Vitally Important For Families With Estranged Loved Ones
We see many families who have a loved one who is estranged. For those with an estranged loved one when disinheritence for that person is desired, estate planning is vitally important. Our offices have strategies in place to help all types of families plan for themselves and their loved ones (whether you are tight-knit, estranged, or "it's complicated"). With proper advance planning, each person can retain the assets it has taken a lifetime to accumulate and the peace of mind that the needs of the loved ones who he or she designates will be adequately and properly addressed. If you or members of your family have not done Incapacity Planning or Estate Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for a consultation.