Issues With Disinheritance

There are many questions that arise when a testator disinherits a child or spouse. The obvious question that arises is why? There are many reasons why a testator would disinherit an heir, and they range from the most rational economic reasons to irrational resentment and bitterness among family members.

Disinheritance can cause many problems between those family members who received their inheritance and those who were not included in the will. For attorneys, the problems arise in trying to balance the wishes of the testator and the rights of his potential heirs. So, what is an attorney to do? Attorneys should try to help clients reconcile their differences before the act of disinheritance causes too much harm. Attorneys should act in way that helps their clients realize that their actions could have far reaching consequences. Even if the client refuses to listen, discussing these issues can still expose these problems before the testator dies and gives the client the ability to work with the members of his family on these problems. While this is counter intuitive, it is probably a good idea to specifically list the family member who is disinherited. A client should also offer an explanation of why that relative is disinherited to that family member so that there is no misunderstanding.

The potential affects become even more of a problem when the disinheritance fails. For example, it is quite difficult to disinherit a spouse in the United States in both the community property or common law states. The only purpose of this type of disinheritance is symbolic. This could force an estate, in which a testator chose to disinherit a spouse, to sell property from the estate to satisfy the statutory elective share. It could be more economically beneficial for a client to re-evaluate his or her prenuptial agreements or the marriage itself.

The best option to his disinherit your family members is to place your property in a trust, especially if incompetency of one of your clients’ heirs in an issue. The privacy of trusts is also a benefit for clients because it allows them to establish unequal bequests. 

See Scott Martin, Why Are Family Members Disinherited?, Trust Advisor, Apr. 15, 2012.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.