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In New York State, a parent has no obligation to leave an inheritance to a child. Many other countries have “forced heirship” which prohibits parents from disinheriting children, but Louisiana is the only US state with such a law. In New York, the only relative who cannot be disinherited is a surviving spouse. The surviving spouse has the right to an “elective share” of their decedent-spouse’s estate, amounting to the higher of $50,000 or 1/3 of the estate. Parents choose to disinherit children for many reasons – some benign. Sometimes a child has enough money of their own, already received their portion of inheritance. Other times a parent disapprove of a child’s lifestyle choice or simply don’t have a close relationship. Whatever the reasons, people are generally able to leave their assets to whomever they wish. But that doesn’t mean that the disinherited child can’t cause trouble.
Disinheriting a Child in a Will is NOT airtight
Even though a parent can disinherit a child in a Last Will & Testament, it is not the best method because the disinherited can make waves. When a person dies with a Will, the executor must file a probate petition with the Surrogate’s Court. The law also requires that every person with an interest in the estate receive a copy of the Will. A child of the deceased is always an interested party because they would automatically inherit if there had been no Will. The interested party must either sign a Waiver and Consent or be issued a citation to appear in court. If they refuse to sign a Waiver and Consent, a court date is set where the disinherited child will have to appear in court. In this way the probate proceeding is stalled.
How Can a Disinherited Child Cause Trouble?
A disinherited child gets a copy of the Will and a court date where they have the opportunity to object. They could contest the Will alleging fraud, undue influence, duress, or that the decedent lacked the requisite mental capacity. If they can get the Will thrown out, they can then inherit! This is because the law of intestacy is very strict. If an unmarried person dies without a Will (“intestate”) with children, the children split the estate equally. The disinherited party can force a settlement by delaying the case. Sometimes it is more cost effective to settle than litigate.
Three Ways to Disinherit a Child
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Revocable trust instead of a Will
There are steps one can take when disinheriting a child to avoid unnecessary expense, delay, and possible litigation. One way to avoid a costly and time-consuming Will contest is to put assets into a trust. Any assets held in a trust avoid the probate process. Avoiding probate means the disinherited child is not entitled to notice nor is their consent required. At the trust creator’s death, the trustee simply follows the terms of the trust when distributing the assets to beneficiaries. The disinherited child would not to be involved nor entitled to a copy of the trust.
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Joint ownership & designated beneficiaries
Alternatively, assets that are jointly owned or have designated beneficiaries avoid probate. Such assets instead pass directly to the joint owner or beneficiary at death. Jointly held assets could be bank accounts or real estate. Common assets with beneficiaries are retirement accounts and life insurance. The disinherited child’s consent is not required and they have no right to any information concerning the distributions.
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Have less than a $50,000 pass through your estate
Finally, where a person passes away with $50,000 or less in personal property and didn’t own any real property solely in their own name, a small estate proceeding is available. A small estate proceeding, also known as a Voluntary Administration, still involves the Surrogates Court but it is a simpler process. Although notice needs to be given to the decedent’s distributees, a Waiver & Consent form is not required. So, a disinherited child still gets a copy of the Will but they cannot hold the probate process hostage. They can also still contest the Will – but they don’t get a convenient date to show up in court. They must hire their own attorney and start the litigation process – which is often enough of a deterrent to curtail unsubstantiated Will contests.
Disinheriting a child can create problems down the road should the disinherited child challenge the Will. If you plan on disinheriting a child, consult an experienced trusts and estates attorney. An estate planning attorney can ensure all your assets pass to your chosen beneficiaries’ drama-free.
