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Overseeing an estate can be challenging—almost as challenging as being a parent.
When the time comes to decide how your estate will be divided and distributed upon your death, navigating inheritance issues alone can prove difficult.
For example, what if you suspect one of your children would only be harmed by receiving a large inheritance, or that they would do lasting harm to your legacy? One option, although painful to imagine, is to disinherit that loved one from your will.
As with any other difficult choice, the decision to disinherit a child from a will shouldn’t be made on a whim. Due diligence requires that you take stock of the potential consequences and legal ramifications of disinheritance before making it final. Fortunately, you don’t have to do it alone.
Exploring the possibility of disinheritance is one of the many services offered by the estate planning attorneys at Linn Legal.
This article will explain everything you need to know about how to disinherit a child from a will, including common grounds for disinheritance and potential challenges to your will.
As leading estate planning attorneys in Cincinnati, we understand that no two estates are exactly alike. Each client comes with their own unique set of considerations, goals and preferences, and we’re here to honor them. Call us at (513) 426-9443 to get started.
What Are Grounds for Disinheriting a Child?
The laws surrounding disinheritance vary by state. Under Ohio State law, you have the legal right to disinherit children (as long as they are not minor children) for a variety of reasons. However, that doesn’t necessarily mean you’ll be successful in doing so, especially without a properly drafted will.
In order to disinherit a child, your will needs to be clear and specific; it should identify the child you wish to disinherit and explain that it is your intention to do so. Your will should also contain a residuary clause—a provision that establishes who will receive an asset (or proceeds of an asset) in the event that your will or trust doesn’t name a beneficiary—and be witnessed by at least two people who are not beneficiaries.
The Most Common Grounds for Disinheritance
Choosing to disinherit a child from your will is an emotional, complex decision, but it’s not especially uncommon. Many people have had to make the hard choice of disinheriting a child, and though numerous factors play a role in determining disinheritance, some are more common than others.
Most reasons for disinheriting a child involve at least one of the following:
- Your child’s lifestyle choices. Your child may have significant behavioral problems that you feel would be exacerbated by receiving a large inheritance. For example, your child may struggle with a drug or gambling addiction, or they may be tempted to leave their current spouse and family if they came into a significant amount of money. For these reasons, you may feel as though disinheritance is the best thing for them.
- Poor relationship or estrangement. If you and your child are estranged or have a poor relationship, you may be reluctant to leave them an inheritance. You may want to disinherit them so that you can pass your assets along to someone with whom you have a trusting, genuine relationship.
- Need (or lack of need). If your child is financially secure or even wealthy, you may choose to disinherit them from your will in order to pass an inheritance on to other children or people who could benefit more from your gifts.
- Prior gifts. If you’ve already given significant gifts and financial assistance to a child in your lifetime, you may feel as though they’ve already received their inheritance. You may want to disinherit that child from your will in order to pass more money to other children or beneficiaries that didn’t receive as much support during your lifetime.
Ultimately, the decision to disinherit a child from your will is personal and should be respected. However, it’s important to consider your decision carefully before enacting it to avoid a situation in which you regret disinheriting them or end up reversing your decision.
How to Disinherit Your Child in Your Will
If you’re wondering how to disinherit a child from a will, you need to understand that there’s a right way and a wrong way to go about it. Failing to make your intentions clear and specific can leave your will vulnerable to be successfully challenged.
There are several different ways to effectively disinherit a child from your will. Here are some of the options that you, as the testator, may want to explore with your attorney:
- Identifying a disinherited child in your will. In order to legally disinherit your child, you will need to identify them in your will and specify that you intend to leave them nothing. Failure to state your intention to leave them out of your will could result in it being contested.
- Adding a no-contest clause. Some states are willing to enforce a no-contest clause, and Ohio is one of them. These clauses say that if anyone unsuccessfully attempts to challenge your will, that person will forfeit all inheritance. Although this clause provides a minimal deterrent to the already disinherited child, it’s still useful in deterring other individuals and family members from contesting your will.
- Leaving your child a minimal inheritance. An alternative to complete disinheritance is leaving your child a minimal gift in your will. By leaving them a small gift in your will and specifying that the minimal gift is intentional, you make it more difficult for that child to argue that your actions were accidental.
- Leaving inheritance through beneficiary designations. In some cases, a parent wants to provide for one child through a beneficiary designation or living trust and leave their other assets to a different child in a will. This type of situation is tricky, and ensuring your wishes are carried out will require a higher level of specificity in your will. You may want to explain in your will that you are bequeathing part of your estate to the omitted child through other means.
Regardless of how you choose to accomplish a disinheritance, it’s important to anticipate pushback from the disinherited party. Your disinherited child may try to fight back against your wishes by challenging the will.
Understanding Challenges to a Will
If you go about disinheriting a child from your will in the proper manner, that child will have limited recourse. However, the disinherited party may still be able to challenge your decision through a will contest. In order to succeed, they will need to prove one of the following:
- Accidental disinheritance. If your will fails to specify that the omission of a child is intentional, that child could claim that their disinheritance was accidental. A child may be able to successfully challenge their disinheritance in a probate court proceeding, especially if that child was born after their parent’s will was signed.
- Undue influence. In some cases, a child is able to convince the court their parent’s decision to disinherit them was coerced by another party. This undue influence is typically committed by a person who stands to benefit from the disinheritance of that child.
- Lack of mental capacity. Some disinherited children will claim that their parents didn’t possess the mental capacity necessary to prepare a valid will and weren’t of sound mind when signing it. However, challenges based on both undue influence and lack of mental capacity are difficult to prove.
- Improper execution. If your will is vague, lacks a residuary clause or wasn’t properly witnessed, your disinherited child may succeed in their challenge. Although some claims based on improper execution succeed in Ohio, the process is typically difficult, time-consuming and expensive.
The best way to ensure that a disinherited child is unable to successfully challenge your will is by working with an experienced Cincinnati wills lawyer to create it. A diligent attorney can make sure that your last will and testament is drafted, witnessed and executed in a way that deters any would-be challengers.
Linn Legal: Top Estate Planning Attorneys Serving Cincinnati
There is a misconception that parents who disinherit their adult children are doing so with malicious, stubborn or impulsive reasons, but that’s just not the reality.
As top estate planning attorneys in Cincinnati, we’ve handled many disinheritance cases, and the majority of parents who disinherit a child do so as a last resort and only after careful consideration.
If you’re exploring how to disinherit a child from a will, you’ve probably already put a lot of thought into your decision. By designing a top-quality, comprehensive estate plan, we can help ensure your assets are divided and distributed according to your wishes.
Contact Linn Legal online to schedule a free case evaluation or call our law firm at (513) 426-9443 to speak with an experienced estate planning attorney today.
