Estate Planning With a Problem Child and Disinheriting the Legal Way
Mat Sorensen
May 10, 2013

Perhaps you have a child whom you’d like to disinherit from your estate. If so, don’t just leave their name out of things and think that this will accomplish your goals as the laws in most states will presume you intended to have them be an heir unless you specifically state otherwise.  Following your spouse, your children are the presumed heirs to your estate by law in the absence of an estate plan. As a result, it is important to complete an entire list of your children in the estate plan and to specifically mention any child who will not be an heir to your estate by stating something like, “it is the intention of the settlor (you) to disinherit the following child from the estate.” It’s that simple; just make a clear writing indicating that you specifically intend them not to be an heir to your estate and they’re out.

As to the problem child who you still want to provide for but want some added strings attached, keep in mind that while you can generally have freedom in deciding how to pass on your estate and can a lot of excellent restrictions and controls to the estate through a well drafted trust there are some things which a trust cannot do.  For example, a trust (or will) cannot be created and enforced to go against public policy, promote illegal activities, and promote tortuous acts. One of the common problematic clauses is one which requires a child to divorce their spouse in order for them to receive their inheritance. For example, you can’t say, “Johnny doesn’t get anything from the estate so long as he is married to Susie Flusie”. Many courts view this as a violation of public policy as it promotes divorce. As a result, avoid clauses such as these and seek the guidance of an attorney when adding clauses which disinherit or significantly restrict a child’s inheritance.