Massachusetts Estate Planning: Disinheriting Children
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You can treat heirs differently in your estate plan, and even completely disinherit any family member (except for a spouse) under Massachusetts law. You need to make sure this is done right, however. Otherwise the child who was disinherited or received less could contest your will in the probate process. In this situation, a court might be convinced that the omission was not intentional, and override your wishes.
The decision to disinherit a child or other family member could also have unintended consequences that you should understand before finalizing your plan, and there may be alternative ways to achieve your ultimate goals. |
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Reasons a Child Might Be Disinherited
There are many reasons a parent might consider this. You may have a child from whom you are estranged. You may have an adult child who is already wealthy and taken care of and another with a greater need. If your primary asset is a family business, you may have children who are capable of and interested in taking over that business and others who are not.
You may also have a child from another marriage who is taken care of differently in your estate plan. We helped a man who had a child in a different country from a first marriage who was receiving all of his property in that country. Even though in the end all of his children were taken care of equally, he had to specify that this child was omitted from his U.S. will so that his children here could receive all that he intended for them.
You may also have a child from another marriage who is taken care of differently in your estate plan. We helped a man who had a child in a different country from a first marriage who was receiving all of his property in that country. Even though in the end all of his children were taken care of equally, he had to specify that this child was omitted from his U.S. will so that his children here could receive all that he intended for them.
Alternatives to Disinheritance
Depending on what you want to accomplish, there may be different ways to go about it than writing a child out of your will.
If you are contemplating this because you don't want a child with special needs to lose government benefits, you can do this with a special needs trust.
If your concern is that you have an adult child who is not good at managing money, or has creditors, you can leave assets for that child in a trust. The trust can be written so that the trustee can oversee the child's management of money. It can also be drafted to protect the assets from creditors, or sometimes ex-spouses.
It is important to be clear with your estate planning attorney about what your goals are, because there may be ways to accomplish them that you had not considered.
If you are contemplating this because you don't want a child with special needs to lose government benefits, you can do this with a special needs trust.
If your concern is that you have an adult child who is not good at managing money, or has creditors, you can leave assets for that child in a trust. The trust can be written so that the trustee can oversee the child's management of money. It can also be drafted to protect the assets from creditors, or sometimes ex-spouses.
It is important to be clear with your estate planning attorney about what your goals are, because there may be ways to accomplish them that you had not considered.
Disinheritance: A Cautionary Note
Even though it is perfectly legal, leaving a child out of your will or estate plan can create complications for your family. Understand first that this will create conflict between your surviving children.
Second, especially if you have substantial assets, the child who is left out is more prone to contesting the will in probate court. They could claim that someone exercised undue influence and therefore the will is invalid. If you are older when you make your will, it is more likely that they will challenge your mental capacity to make or change your will.
Finally, whatever decision you make about your child you are also making to some extent for their children, born or unborn. Whatever your reasons for disinheriting the child may not apply to future grandchildren.
For all of these reasons, it is important to explore all of your options with your estate planning attorney so that in the end your plan truly does what you want it to for your family.
Second, especially if you have substantial assets, the child who is left out is more prone to contesting the will in probate court. They could claim that someone exercised undue influence and therefore the will is invalid. If you are older when you make your will, it is more likely that they will challenge your mental capacity to make or change your will.
Finally, whatever decision you make about your child you are also making to some extent for their children, born or unborn. Whatever your reasons for disinheriting the child may not apply to future grandchildren.
For all of these reasons, it is important to explore all of your options with your estate planning attorney so that in the end your plan truly does what you want it to for your family.
How to Disinherit a Child
Massachusetts law allows you to leave a child out of your estate plan, but you have to be specific. Your will should contain language that directly states your intention to omit that child or children from your estate plan.
You also should bring your spouse into the conversation and into the estate planning process. If your surviving spouse is the primary beneficiary of your will and does not have an estate plan of his or her own, all of his or her assets will pass to all of your children eventually, including the one you intended to omit.
You can also talk to your lawyer about the use of trusts to ensure that your goals are accomplished after you are gone. For example, you can use a trust to provide for your spouse during his or her lifetime with the assets ultimately going to the child or children you intended to benefit.
Finally, it is important not to forget the things outside of your formal estate plan. If you have life insurance you should check to make sure the designated beneficiaries are still who you intend. Many people when their children are young name their spouse as the first beneficiary and their children equally if the spouse is no longer living. If this is no longer what you want, you should contact your life insurance company to change this.
The same is true of investment accounts, retirement accounts, and sometimes other bank accounts. Anything that has a designated beneficiary should be checked to make sure those beneficiaries are correct.
You also should bring your spouse into the conversation and into the estate planning process. If your surviving spouse is the primary beneficiary of your will and does not have an estate plan of his or her own, all of his or her assets will pass to all of your children eventually, including the one you intended to omit.
You can also talk to your lawyer about the use of trusts to ensure that your goals are accomplished after you are gone. For example, you can use a trust to provide for your spouse during his or her lifetime with the assets ultimately going to the child or children you intended to benefit.
Finally, it is important not to forget the things outside of your formal estate plan. If you have life insurance you should check to make sure the designated beneficiaries are still who you intend. Many people when their children are young name their spouse as the first beneficiary and their children equally if the spouse is no longer living. If this is no longer what you want, you should contact your life insurance company to change this.
The same is true of investment accounts, retirement accounts, and sometimes other bank accounts. Anything that has a designated beneficiary should be checked to make sure those beneficiaries are correct.
Meet Our Estate Planning Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna wrote a book on estate planning: The Road to Peace of Mind: What You Need to Know About Estate Planning. Jenna has helped many individuals and families with planning to protect their legacies and loved ones, and planning for the future and succession of their businesses.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and earned her LLM in estate planning from Western New England Scool of Law in 2016. She has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped many clients with planning for their legacies and their future, and navigating the probate process in Massachusetts after the death of a loved one.
How We Can Help
We are ready to help. We understand this can be a difficult issue to tackle, so we have designed our process to make it as easy as possible for you to get the plan in place that protects you and your family and accomplishes your goals. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.
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