Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, November 9, 2014

Do's And Don'ts When Disinheriting

Power Struggle

Disinheriting a child can be a difficult choice for parents.  However, if this is the intended choice, there are do’s and don’ts when disinheriting:

  1. Do consider a “skip bequest” to their children. If your child has children, you might leave their share directly to their children, either in the form of a trust or guardianship arrangement managed by one of your other children. 
  2. Do consider an incentive trust. You might leave your child’s share to an incentive trust.  This is a trust designed to encourage behavioral changes as a condition to receiving trust benefits.
  3. Do document your decision. If you feel as though you may be challenged on your will, take steps to help defend against a later challenge.  At the time of signing your will, you might record an audio or videotape interview where you discuss the reasons for disinheriting your child.
  4. Don’t overlook naming them in your will or trust. If you do decide to disinherit your child, it may be tempting to not even identify them in your estate plan.  However, this is a mistake.  If you omitted your child’s name entirely, the law would presume you had a memory lapse, and a judge would likely insert them back into your will to take back their proportionate share as a pretermitted heir. 
  5. Don’t rely on the “No Contest Clause.” The No Contest Clause is often included in wills to discourage will contests, yet standing alone, will be ineffective.  If you leave nothing to your child at the outset, they would have nothing to lose, and potentially everything to gain, by challenging the will.  Thus, it would be better to leave them something to discourage a will contest.

See Thinking Of Disinheriting A Child? Some Do’s And Don’ts, The Law Offices of Osofsky & Osofky, Oct. 30., 2014. 

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