By Lane V. Erickson, Idaho Estate Planning Attorney
To be clear right up front, we don’t often encourage any of our clients to disinherit their children, other family members or loved ones from their estate. Having said that, we have found that there are times when it is in fact a good idea to do this.
Disinheritance doesn’t happen automatically. In fact, the law in Idaho and most states favors family members and loved ones receiving an individual’s estate after they die. To disinherit someone requires specific documents and specific language in those documents to show that a disinheritance of a particular person is what was intended.
For example, the law protects an unnamed child in a last will and testament. If you are a parent and you create a written Will where you name your children but you have one or more children born after your Will was created, the law will protect that child and allow them to receive the same proportion of inheritance as your other children even though they are not named in the actual Will. Additionally, if you have no written Will, then all of your children who are alive at your death are treated equally and will receive a portion of your estate if you have no surviving spouse.
To show your intention to disinherit someone there has to be actual language in the written Will stating that this person is disinherited. No reasons have to be given, but the language that is used has to be clear and easy enough to understand to evidence that this is in fact your intention.
So, knowing that it is not easy to disinherit someone, and that it doesn’t happen automatically, are there good reasons for disinheriting a family member or loved one? The short answer is yes. The purpose of this article is to discuss some of those reasons, so that you have an understanding that disinheritance is in fact one of the tools you can use as part of your estate planning when it is needed.
Prenuptial or Postnuptial Agreement with SpouseThe first reason that a person could and maybe should be disinherited from a Will is when there is either a prenuptial or a postnuptial agreement with a spouse. A prenuptial or postnuptial agreement is often used when one spouse is wealthy and the other spouse is not. These types of agreements are also often used when there is a second or third marriage between spouses who are each bringing their own property into the marriage. In this instance, these spouses often want to keep their property separate so that it can go to their own family members after they pass away.
Again, disinheritance of a spouse is not an automatic thing. In fact, there are many laws in Idaho that protect spouses for being disinherited. However, a person can disinherit a spouse when it comes to distributing their own separate property. This is especially true when a postnuptial or prenuptial agreement exists.
Wayward ChildIn addition to disinheriting a spouse, a parent can disinherit a child for just about any reason or even for no reason. One of the most often used reasons for disinheriting a child is when the child is wayward or has some specific problems they are dealing with. These could include addictions to alcohol or drugs or other self-destructive things. In these circumstances, parents realize that if they leave any money, assets, or property to this child through an inheritance, this may cause that child to have more problems.
Sometimes, parents don’t have a good relationship with a child. We’ve often seen instances where children are emotionally or physically abusive with their own parents. We’ve also seen instances where children neglect their parents or disown them.
While these circumstances are unusual and extreme, they do happen from time to time. Any of these situations are a good reason for disinheritance to be considered or used as part of the estate plan.
Child with Disabilities Who is Receiving BenefitsEven when none of those situations exist, you may have a child that has disabilities or handicaps that may make disinheritance a good idea. The reason for this is that these children are often receiving federal, state, or local disability benefits that have restrictive guidelines concerning the amounts of money or types of property they can own and still qualify for those benefits. If you were to leave an inheritance directly to this child, they may lose those benefits.
When this is the situation, many parents still find it distasteful to disinherit these children that they believe they have a responsibility to continue to take care of even after their own death. In this circumstance, we can help these parents create a supplemental needs trust that they can provide that child’s inheritance to and that will be used to supplement the benefits that child receives so that the children don’t lose their benefits. This is a great way for a parent to continue to provide for and protect a child without giving anything directly to that child and jeopardizing that child’s disability benefits.
As you can see, there are often not only good but important reasons for disinheriting a spouse, a child, or other family members or loved ones. If you have questions or concerns about whether you should consider disinheritance as one of the tools of your estate plan, we can help. We have assisted numerous clients through creating their own customized estate plans which include disinheriting a family member and we are confident that we can help you too!
Enlist an Idaho Estate Planning Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.