What do you do when you have a child you’d like to disinherit from your estate? It’s not as easy as you think, so make sure you follow the proper procedures to specifically cut them out. 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. Your children, along with your spouse (if you have one), 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.
If you have a problem child who you still want to provide for but want some strings attached, you can add a lot of excellent restrictions and controls to the estate through a well drafted trust. For example, you could state that the problem child can’t inherit their share of the estate if they have a drug or alcohol addiction. You could also be specific about something in their life. Say you had a child with legal issues or that has creditors chasing them down. You could state that the trust will only distribute once the child has resolved issues in their lawsuit or with creditors. Many trusts will have a spendthrift clause that addresses creditor issues for all heirs but you can also make it specific to an issue an heir may have that you want resolved before they inherit.
It is important to note that 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”. 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.