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McClellan Legal LLC Estate Planning & Tax Assessment Blog

Wednesday, February 7, 2018

Disinheriting Someone: Things to Consider

There are situations that arise when your estate plan may include specifically disinheriting someone.  My clients have mentioned several reasons to disinherit an individual, including: an estranged relationship with the individual, the individual is financially irresponsible, or the individual is already financially better off than other potential beneficiaries.  Of course, there are many other reasons that a person may be disinherited. 

Who Is Disinherited?

Who are the usual disinheriting targets?  There is no need to disinherit someone that wouldn’t naturally receive an inheritance at your death.  Disinheriting targets are those that stand to lose out if you move forward with a new Will.  Hence, are you changing the status quo?  In most situations, your spouse and children are your natural heirs.  If your close family members pass away before you, then other family members could also become natural heirs (starting with parents, then siblings).  Also, if a new Will leaves out a person from the previous Will (e.g., a distant family member, friend, or neighbor), then you may also want to consider expressly disinheriting that person in the new Will.  But, there’s no need to disinherit someone that has no chance to receive an inheritance.

Spouse

Absent a prenuptial or postnuptial agreement, the only person that you cannot completely disinherit is your spouse.  Pennsylvania law provides a spouse with the option of an Elective Share that states that a surviving spouse may take what the spouse receives in a Will or may elect to take 1/3 of the estate (may not include all assets).  Therefore, if a spouse is disinherited in the Will, that spouse may elect to take one-third under Pennsylvania law.

Children

You can disinherit adult children.  The reasons vary, but children are the most common group of disinherited individuals.  If you decide to disinherit a child, then you need to carefully consider how you are going to do it.  First, disinheritance via omission is usually not a successful strategy.  You should expressly state that you are disinheriting a child.  Second, there are ways to potentially soften the disinheritance blow by explaining why you have made that decision.  For example, you can explain that you have given substantial resources to the disinherited child throughout their adult life and it’s only fair to the other children to provide them with a larger inheritance.  If the reason for disinheriting a child is due to their financial immaturity (e.g., due to drug/alcohol abuse, gambling, spendthrift, etc.), then you may want to consider providing their inheritance via trust that is managed by another individual instead of disinheriting them entirely.

Will Contest

When you disinherit someone, the likelihood of that person contesting the Will skyrockets.  Therefore, you need to consider the impact a potential Will Contest will have on your family.  One way to help avoid a Will Contest is to include a No Contest Provision in your Will.  A No Contest Provision states that if a person unsuccessfully contests your Will, then that person receives nothing.  Of course, this assumes that you left them something that they could lose (e.g., $10,000).  Additionally, you may also want to meet with your estate planning attorney regularly to provide greater evidence that your intention to disinherit wasn’t merely a singular thought. 

Beneficiary Designations

Often our largest assets are controlled outside of our Will via beneficiary designations (e.g., life insurance and retirement accounts).  If you decide to disinherit someone, don’t overlook the need to update your beneficiary designation forms to coordinate with your estate planning documents.

Conclusion

Disinheriting someone is a difficult decision because of the emotional strain that it will place on your family.  We always encourage our clients to carefully consider the decision to disinherit.  However, when you make the decision to disinherit someone, it is critical that it is executed in manner that achieves the desired result while minimizing the potential wake.




McClellan Legal LLC is located in Kennett Square and serves clients throughout the areas of Avondale, Chadds Ford, Coatesville, Downingtown, Landenberg, Oxford, Phoenixville, Pottstown, West Chester, & West Grove. We also serve the following towns in Lancaster County: Lancaster, Lititz, Strasburg,Millersville, Ephrata, Leola, Manheim, New Holland, Willow Street, Quarryville, Elizabethtown and Mountville.



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113 South Broad Street, Kennett Square, PA 19348
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