Pocatello Estate Planning: Disinheriting a Family Member

Our Pocatello Estate Planning attorneys know that a decision to disinherit a family member is not an easy one to make. However, we do have clients who ask us whether it can be done. Disinheritance occurs when an individual makes the decision to intentionally state that a certain person or persons will receive no assets or property from their estate after they die. Disinheritance is never an automatic event. Rather, current Idaho law presumes that an individual will leave their money, assets and property to their spouse and children. However, there are several valid reasons why a person may want to disinherit a family member, in an way that may even benefit that family member. With over 70 years of experience our Pocatello Estate Planning layers can help you discuss and determine whether a disinheritance is something you should consider

Through our highly rated estate planning team of lawyers, which includes partners Randy Budge and Lane Erickson, and attorneys Nathan Palmer and Dave Bagley we are confident that we can help you understand all you should know if you are considering disinheriting a family member. Choosing to deliberately no give a portion of your property to a family member when you die is not an easy decision to make. Here are three things you should know that my help you with this decision:

Idaho law presumes that you will want to pass your property to your spouse when they die. On top of that, Idaho is a community property state, which creates and additional presumption that exactly half of all property is owned by each spouse. AS a result, it is important to understand that in most instances, it is not possible to completely disinherit a spouse. As with most things, there are some exceptions under Idaho law.

The first exception occurs when there is a legal agreement that exists like a prenuptial agreement or a community property separation agreement. When such an agreement exists, the community property presumption can be rebutted and removed. In other words, you and your spouse will have already agreed that certain items of property are owned individually and not as a couple.

Another exception occurs when a spouse bring to the marriage, property that they owned separately before the marriage. This could be a home, or bank account, or other item of property. Under these circumstances, so long as the property is kept separate, the community property presumption can be negated.

A final exception can happen even during a marriage. When a person who is married, receives a gift individually, such as an inheritance from a deceased parent or for an occasion such as a birthday, the gift that is received is considered to be separate property of that individual. So long as that item is kept separate, other spouse cannot claim that such a gift is or becomes community property.

Under normal circumstances, if none of the exceptions above exist and there is no written agreement all property will be considered community property. When this happens, a person cannot completely disinherit their spouse. To real understand your particular circumstances, you should consult with a Pocatello estate planning attorney. We encourage you to contact us because we are confident that we can help you.

In addition to disinheriting a spouse, there are sometimes valid and good reasons for a parent may to avoid leaving their child money or property from their estate. Some good examples would include when you have a wayward child who struggles with addictions such as drugs, or alcohol, or gambling. When this situation exists, leaving that child with money or property from your estate when you pass away will likely only harm your child. Most parents do not what that.

Another good reason to disinherit a child from your estate exists when you have a child with a handicap or a disability. Such children are often getting local, state and/or federal benefits that help them financially. These benefits will most likely be immediately ended if your child receives a direct inheritance from your estate. Under these circumstances disinheriting your special needs child may be the only way to ensure that they continue to receive the benefits they obtained.

There is nothing in Idaho that prevents a parent from disinheriting a child. However, it must be done specifically and in writing. This is usually done in a parent’s Last Will and Testament. It must contain specific language stating that the is disinherited and receives nothing. You can’t just leave your child’s name out of your Last Will and Testament. That is not enough to work. Idaho law states that when a parent fails to mention or name a child in their Last Will and Testament that child will be presumed to have been forgotten. The law then states that such a child will be treated as if they were named in the Last Will and Testament and they will receive a portion of the parent’s money and/or property.

If a disinheritance occurs, can the person who was disinherited do anything about it? In other words, can they challenge the disinheritance? Yes. It is not uncommon for a disinherited person to challenge the validity of the Last Will and Testament that disinherited them. When this happens, the estate will be obligated to fight to enforce the terms and conditions of the written Last Will and Testament. It is for this reason that we recommend that you speak with our Pocatello Estate Planning attorneys who can help you not only in creating your written Last Will and Testament, but can also help your family enforce it after you are gone.

If you have questions about disinheriting a family member from your estate, our Pocatello Estate Planning attorneys can help you. We are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation with the Racine Olson team of Estate Planning attorneys in Pocatello. You can also email us directly at racine@racinelaw.net. We will answer your questions and will help you solve your Pocatello Estate Planning problems.