There is a complicated relationship between estranged children and wills. Since it is a complex area of family law, the court considers each type of case separately.
Since the laws are different, the rulings are also diverse.
A last will or testament is a document that records the wishes of estate bearers with regard to what is to be done with their possessions after their death. With the help of this document, a living person can take future decisions about the assets they own.
If you don’t have a will in place at the time of death, your spouse and children will have a right to claim an inheritance. The US Family Court has its own standard way of dividing assets in such a case. This can include everything from your savings in bank accounts to the leasehold property you posses, even extending to assets like your book collection or your laptop.
But what exactly happens if your children are disinherited or estranged? Let’s learn everything there is to about estranged children and wills.
Reasons for Estrangement
Estrangement in a broad sense means when two people are no longer on friendly terms with each other. In a familial situation, it means that the parent is not on good terms with his or her (usually adult) child. There could be a complete lack of a relationship, with minimal to no contact between the two parties.
Estrangement, in strict terms, is usually over a sustained period ranging from months to even years. If a child’s relationship with the family has only been shaky for a day or two, it doesn’t count as estrangement. It is a much more serious case, however, if months or years pass without any contact or positive interaction.
Many parents try to use the threat of exclusion or disinheritance as a tool to make their heirs fall in line. This doesn’t always work and can worsen the relationship.
In fact, blackmail often results in the complete destruction of the relationship. So as a parent, you must consider all aspects of the issue before deciding to write your child or children out of your will.
Estranged Children’s Rights without a Will
Whether estranged children can contest their rights of inheritance or not depends largely on a will.
If the person who died has a legally valid will in place, there are more chances of it not being contested. If they have no valid will, however, the usual laws of family inheritance would apply. In essence, the spouse and children would have their rightful share.
Estranged Children’s Rights with a Will
The truth is, even children that have been estranged for a long period have the right to contest your will. If they feel, and the court agrees, that you have made insufficient provisions for them, they can challenge the document.
Challenging a Will
To challenge a will, the children must take the legal route and let the court make its decision on the matter.
When taking a decision, the court takes around 20 issues into account. This includes the size of the deceased’s estate as well as the needs of the estranged child. The court will consider a complex matrix of conditions before reaching a decision.
It is not uncommon for estranged children to succeed in attaining their inheritance, especially if they need money. A study suggests that 74% of family provision claims made by family members were successful.
The legislation lets the representatives of the deceased make a statement–in the form of a statutory declaration– explaining the reason for leaving out a child. If the point is sufficiently made, this can help greatly in facing the challenge.
Consider consulting an estate planning expert. A professional can review your circumstances in light of the law and court precedents. The consultants will examine your situation and let you know whether you have the grounds to overcome the challenge in front of you. A specialist can also prepare appropriate statements for you to read out.
If you want your will to be upheld, you could consider transferring assets to other beneficiaries. But you must try and do this with great caution, since the cost of transfer and potential tax implications may make it difficult.
Now that it is clear that your children still have inheritance rights even when you disinherit them. In this case, the nature of the relationship, the financial health and need of the child, and the cause are all important factors.
The family court considers these factors to see whether the decision of the parents was fair or not. Some cases work out in the parent’s favor, while some do not.
Disinheriting Your Children
The law cuts off disinherited children from the will of the deceased. But this does not keep them from making an inheritance claim. The court may or may not accept it depending on various circumstances.
In one case, the judges revised the will to give the disinherited child a larger share. The child’s earning capacity and assets were taken into consideration before the judges made the final decision. The main aim was to make sure that the parents were not being unfair to their children.
However, in certain cases of estranged children and wills, the court of law can support the parent’s decision. In another case, for example, the estranged child had not only behaved callously but also disregarded the wellbeing of the deceased. The child’s appeal was summarily denied on these grounds.
In short, disinheriting your estranged children is a two-way street. If you have been unfair, they can appeal for their rights. And based on the circumstances, the court can decide whether to change your will or not.
Limitations to Disinheriting Children
The limitations for disinheriting are in place for the protection of all parties, especially the children. For this reason, disinheriting estranged children is not allowed under the following circumstances:
Children need to be older than 23 years to be legally disinherited from their parents’ will. Children who are 23 or are younger are dependents, and cannot be barred from a will, even if they are currently estranged.
If the child has diminished mental capacity, or has special needs, he or she cannot be disinherited. Special needs children with conditions like autism or Down’s syndrome are life-long dependents. This condition applies regardless of the age of the heir.
In some cases, the children might have a physical disability which leaves them incapable of taking care of themselves. Their reliance on others makes them life-long dependents of the parents as well. Additionally, they have a diminished capacity to earn. Therefore, parents are permanently responsible for their financial health.
When it comes to estranged children and wills, disinheriting children is possible in all states except for Louisiana.
Revising a Will
Remember that even if you are currently estranged with your children, things can always change. Parents and children may reconcile over the years if the circumstances change.
Most times, children are regretful of their actions; as they grow up they become more understanding of their own flesh and blood after all. They may seek forgiveness and want to be part of the family again. In such a scenario, you have the right to revise your will.
If a child is an unapologetic addict, for example, there are grounds for disinheritance. However, things may change if the child decides to get on the straight and narrow.
If estrangement occurs, parents may immediately consider disinheriting their child. However, this may turn out to be an emotional decision. Thankfully, there are some other alternatives to consider.
A Reduced Inheritance
You can choose to leave the child a reduced share of your estate in the inheritance.
Using a Trust
You can also create a trust fund for your children’s portion of the inheritance. This fund can be attached to certain conditions that would motivate the beneficiaries to change their behavior. This is suitable for those who have issues with their beneficiaries’’ lifestyles or unhealthy addictions.
Leaving it for Your Grand Children
You can choose to leave some or even all of your child’s inheritance to your grandchildren instead. It may be ideal to do this through a trust. So your children are unable to contest the will and get their hands on the inheritance themselves.
All legal matters aside, it may not be ideal to further alienate estranged children by writing them out of your will. If you want your relationship to get better at some point, the right thing to do is sit them down and talk to them. Rather than involving the law and disinheriting them altogether, it is a better idea to deal with the situation in a patient manner.
Relationships are already strained with estranged children, and wills that disinherit them may make situations worse. You can still decide to go through with the idea, but do so after thoroughly considering the alternatives. Make sure you consider everything you learned here!