3 Ways to Accommodate an Estranged Child in Your Estate Plan
Almost every adult has a right to decide how their assets should be distributed upon their death. These assets, which include most everything from bathroom art to a family home, constitute an individual’s “estate.” After you pass away, your estate must be dissolved, with titles and accounts and personal possessions all transferred to named and natural heirs.
In the absence of an estate plan, your family might not be able to prevent an estranged child from claiming inheritance rights. Even with a plan in place, you may need additional safeguards to protect your estate from the very real threat of litigation.
Don’t take chances with your legacy: send Ross & Shoalmire a message online, or contact our experienced Estate Planning Lawyers today to schedule your initial consultation.
An Overview: The Risks of Disinheritance
How Estate Administration Affects Inheritance Rights
In Texas and in Arkansas, succession can take several different forms. The most common of these include:
- Intestate succession. Intestate succession is what happens if you die without an estate plan. Without a valid will or trust, the court will refer to a strict legal code to determine which of your relatives has inheritance rights. Most intestate succession statutes privilege surviving children and surviving spouses.
- Probate and estate administration. Probate is court-monitored estate administration. Most estates, including intestate estates, will be subject to probate. During probate, your executor will present a copy of your last will and testament. So long as the will is valid, your estate will be divided among your named heirs and beneficiaries. Disputes may arise if a disgruntled child claims a disinheritance decision was a mistake.
- Trust administration. Trusts are legal arrangements that effectively bypass probate. If you have a revocable living trust or similar device, you may amend its terms to provide significant protection against contests, creditor claims, and other legal challenges.
An Estranged Child’s Rights to an Inheritance
Some states have “pretermitted heir” statutes.
In a legal context, a pretermitted heir is any person who would ordinarily be expected to receive an inheritance but was, for one reason or another, excluded from a deceased person’s estate plan.
This can happen for any number of reasons, including, but not limited to, the following:
- The deceased person made a mistake when creating their estate plan
- The deceased person did not update their estate plan after getting married or having children
- The deceased person decided to disinherit their spouse or child
Texas and Arkansas both have pretermission statutes that apply specifically to surviving children.
Since pretermission can occur for reasons other than disinheritance, probate courts tend to err on the side of caution. If a will does not comply with Texas or Arkansas’ pretermitted child statutes, a disinherited child could rather easily argue that you had simply forgotten to name them as an heir. As you will no longer be alive to set the record straight, it will be up to your executor and heirs to fight for the inheritance you wanted them to have.
How Disinherited Heirs Can Complicate Estate Succession
If your estate is subject to probate, an estranged child will have ample opportunity to stake claim to your legacy. Probate, after all, requires that your executor send notice of proceedings to all “interested parties.”
The definition of “interested party” is broad and typically includes:
- Your spouse
- Your children
- Other close family members
- Anyone named heir or beneficiary to your will
- Creditors
In short, any party with a legal or financial interest in your estate must be notified when your executor opens probate. It can take months—and, in some cases, the better part of a year—for ordinary probate claims to progress from the initial petition to conclusion. During this interim period, interested parties with the standing to challenge your will are entitled to do so.
Probate challenges can take the shape of:
- Mandatory hearings
- Petitions to remove or replace the executor
- A lawsuit seeking to have an heir’s right to inheritance reinstated
- A lawsuit seeking the outright dismissal of your last will and testament
Even if a challenge fails, it can still have significant repercussions. Your executor is, for instance, required by law to defend the estate from unreasonable claims. Unless the executor wants to pay out-of-pocket for a probate litigation lawyer, they will most likely have to draw upon the estate’s resources to mount a capable defense (and, in some jurisdictions, may be required to do so).
In other words, even if your estate manages to beat back an estranged child’s baseless probate contest, the cost of litigation will still come out of your heirs’ pockets.
3 Strategies to Accommodate an Estranged Child in Your Estate Plan
Simply leaving an estranged child out of your will poses many risks to your estate and to your other heirs. However, you don’t have to take chances with your legacy. Instead of putting your faith in the courts, you can protect your family’s rights by:
1. Disinherit Without Leaving Room for Doubt
Texas and Arkansas both have their own pretermitted child laws.
Despite differences in language, the laws of both states have a similar effect: to disinherit a child, parents cannot simply exclude the child’s name from a will, as doing so could raise questions as to whether the omission was deliberate or unintended. The correct strategy, then, is to clarify your intent. This means:
- Ensuring that your estate plan is valid and up-to-date
- Listing all of your children in your estate plan, including the child who you intend to disinherit
- Including a clear and unambiguous clause stating that you have chosen not to leave a gift for a specific child
This strategy can alleviate doubts about your intent but does not outright negate the risk of probate litigation. Depending on your family characteristics and the circumstances of your death, it is entirely possible that an estranged child could challenge your will on other grounds.
2. Leave an Estranged Child a Smaller Inheritance
If you’re on the fence about disinheriting a child, you may want to consider leaving them an alternate inheritance. You can do this by:
- Bequeathing a smaller inheritance
- Gifting assets of sentimental importance
- Including specific language clarifying your decision
Your estate planning lawyer could also help you insert a no-contest clause into your will, invalidating the inheritance rights of any heir who tries taking the estate to court.
3. Use a Trust to Cut Your Risk and Keep Your Estate Out of Probate
Probate takes place in court. As with most other proceedings, probate records are open to the public and governed by a complex combination of laws. If and when disputes arise, they must typically be adjudicated per state law and legal precedent.
However, you may have better options to protect your estate.
If properly structured, a trust-based estate plan could negate the need for probate in its entirety. Trusts offer other advantages, including, but not limited to, the following:
- Enhanced privacy
- Structured inheritances
- The ability to place age- and situational conditions on heirs’ inheritances, potentially letting you leave assets behind for an heir you can’t trust to manage a lump-sum gift
- Protection from creditor claims
