Relationships can fall apart for many reasons, and sometimes it gets too difficult to forgive and forget. Not everyone bound to us by blood stays that way for life; people grow, change, and move—sometimes out of our lives and hearts.
If an estrangement has taken place in your family, you may be wondering whether it is possible to disinherit a particular person or persons from your estate plan. The short answer is yes; you can. However, there are a number of factors you will need to keep in mind if you are to exclude someone from the estate planning process entirely. Let’s delve deeper into family law to understand disinheritance.
Can You Disinherit Someone Verbally?
In many cases, beneficiaries verbally disinherit an estranged relative that is not in their lives anymore. They assume that because they weren’t around before, they would never be. The unfortunate truth of the matter is that they can still legally claim a part of your estate if you haven’t created a trust or a will. You can tell them they aren’t welcome all you want, but unless there is a legal document confirming the same, there is a high chance your wishes will not be respected.
Disinheriting someone means going through the required legal proceedings ordained by the family court—which, in turn, means hiring an estate planning attorney for the job.
How to Use Estate Law to Disinherit Someone
As we mentioned earlier, inheritance and disinheritance are not internal family issues. Their repercussions go far beyond the realm of the drawing room. In fact, several thousand cases of will contestation come up every single year. This means that it does not matter if two parties are not on good terms. When it comes to inheritance, it is everyone for themselves. So, as a grantor or beneficiary on their way to create an estate plan, what is the right way of doing things?
There are a number of flexibilities in estate planning that let you divide your property with utmost ease. Have a look at some of the most basic ones.
Designating a Beneficiary
The commonly imparted wisdom is that creating a trust is much better than writing a will. For one, a trust makes sure that your wishes are followed to the T with no loopholes and challenges. A living trust cannot be challenged.
The other reason to not go for a will is that the contents of will are public information; anyone will be free to access information about your estate. Your disinheritance of a family member will become public knowledge, and the person in question may become motivated by shame or embarrassment to contest the will. And you surely don’t want to leave this kind of bad blood between your family members when you pass away.
On the other hand, if you create a living trust and designate a beneficiary for the contents, the disinheritance will remain private. Plus, there will be no way to challenge the transfer.
In effect, the disinherited party may claim that you were incapacitated at the time of setting up a trust, but if you have done so a few years before your death, there is good chance that their appeal will be overruled.
Partial Inheritance
Instead of completely disinheriting someone from your estate plan, you can choose to give them a partial inheritance. This would mean leaving them with less than what you leave your other children, for instance. This is a relatively better option since it doesn’t completely alienate the estranged family member.
If you choose to go for a partial inheritance when estate planning, in a living trust or a will, you should remember to add a no-contest clause—also known as the ‘In Terrorum.’
In any case, a disinherited person would be less inclined to contest a partial inheritance since getting something is better than having nothing at all.
Power of Appointment
In blended families, the relationships between stepchildren and stepparents may range from uncomfortable to downright hostile. After the death of the biological parent, stepchildren may resent the stepparent more and more, which can culminate in a challenge in court. They could claim that the stepparent is stepping on their rights and inheritance—a claim that the judicial system usually takes seriously and deals with promptly.
If you fear that such a scenario could be in the works, it would be best to give your spouse the ‘Power of Appointment’ when estate planning. This will give them the right to disinherit a problematic child before waiting for them to file a formal contest in court. A Power of Appointment is hard to challenge and will keep your surviving spouse safe from threats and grievances.
A Word of Advice
Prior to getting in touch with your estate planning lawyer and beginning to draft a living trust, we would like to give you a word of advice as professionals. Disinheriting an heir could mean driving a serious wedge between your relationships forever. There is no coming back from a decision such as this, and so it shouldn’t be taken lightly.
So before you mark your child off as the bad apple and take their inheritance away, think well and hard about the possible repercussions of your actions. If you have, go right ahead!
