Issue 47.13
Frequently I have clients who wish to disinherit a child in their Will or trust. For many possible reasons, it simply is not the right thing for that child to share in the estate. The child may be estranged, ungrateful, inattentive, indebted to the parent, has become hopelessly addicted to a substance or alcohol, or in any number of ways damaged the relationship with the parents.
Utah has no requirement that a parent leave any property to a child. The child has no right to demand an inheritance from you. You are free to leave your property to whomever you want and completely exclude any one or more of your children if you think that is appropriate. You have to do so in your Will or trust, however, because the state default rule will give your estate to all of your children if you are single, unless you direct otherwise in writing.
If you need to disinherit a child, your Will or trust should identify the child and declare that he or she is not to receive any share of your estate. A common misconception is that you need to give “one dollar” or other nominal sum to an otherwise disinherited child. Giving that small amount to a disinherited child stems back to the notion of “cutting off an heir with a shilling” found in early Roman law. It was thought that the testator had lost his memory or mind, and could not make a competent Will, unless he gave each of his children at least some gift. Although those “one dollar” provisions still turn up in many wills, they simply are not necessary to disinherit a child. All that is required is that you declare in your Will or trust that they are not to receive an inheritance.
Some clients are tempted to give the reason for the child being disinherited. There are two main reasons to approach this cautiously. First is that it may raise a question that can be contested. Suppose you write in your Will that your child is disinherited because he has not contacted you for ten years. Your child, however, believes he sent you a birthday card five years ago. This small discrepancy would give a spiteful child enough reason to contest your Will. The second reason is a legal claim for damages based on “testamentary libel.” If you use defamatory language about the disinherited child in your will and it causes injury to his or her reputation, that child may sue your estate for testamentary libel. For these and other reasons, it is typically best not to give the reason for disinheriting your child in your Will or trust. If you insist on doing so, you and your attorney should give utmost attention to the language used.
Although every estate plan should be prepared by a licensed attorney, that is never truer than when you intend to disinherit a child. A will contest by the disinherited child may be likely and the best defense your estate will have is your well drafted Will or trust that anticipates the attack.
Sean Sullivan always gives an initial free consultation. He is a shareholder with the firm of Brindley Sullivan, PLLC, 382 S. Bluff Street, Suite 150, St. George, UT 84770, (435) 673-9220.