Disinheritence

06/05/2012

There are many reasons why a person may want to disinherit another person from receiving his or her assets at death.  It could be lack of affection.  It could be betrayal or cheating.  It could be due to an addiction, like gambling or alcoholism.  In fact, it could be any number of motives, some of which may be rational while others may not.

The fact is it seems that today we are seeing more people making the decision to cut "loved ones" out of there estate plan.  Maybe this is because multiple marriages and affairs are rampant. Maybe people are just more callous then they used to be.  Whatever the reason, it has become more common since I started practicing law. 

So what does it take to write someone out of an estate plan?

Generally, it is relatively simple.  If you want to disinherit someone other then a spouse, you just need to amend your estate planning documents to remove the person or persons you want to disinherit and decide you would get the property that would have otherwise went to that disinherited person. 

People who may be thinking about disinheriting a family member should think about the consequences.  An out-of-the-blue disinheritance may unwittingly breed family contempt between siblings or other family members.  Accusations of undue influence and competency are possible if the person being cut out does not believe that he or she should have been  cut out.  Sometimes it is advisable to document why a person has been cut out.  Potential beneficiaries may not know how deeply they have alienated their parent or other loved one.

The rules are different when it comes to disinheriting a spouse.  In most states, including Missouri, public policy does not allow a spouse to be disinherited.  A spouse is usually entitled to a specific share of the estate unless there is a prenumptial agreement.

I have always advised clients that before disinheriting a loved one, think of alternatives.  What is it you really want to do or protect?  For example, if you have a blended family, do you really want to cut out a spouse or do you just want to protect assets for ultimate distribution to your children from a previous marriage?  Setting up a trust can help achieve this goal.

Some children may not have what it takes to responsibly manage assets.  Again, instead of cutting a child out, setting up a trust for that child may make sense. 

If after looking at the alternatives, a person still wants to disinherit another, then some care should be taken.  Naming the “disinherited” son, daughter or other family member minimizes the odds of a successful will contest.  If competence is an issue, it is sometimes advisable to have a doctor document that the person is indeed capable of making decisions.