Issue 30.12
Frequently I have clients who wish to disinherit a child in their will or trust. For one reason or another, they feel that it would be inappropriate for that child to share in their estate. Disinherited children are typically those who do not visit or call their parents, even on special occasions such as Mother’s Day. It appears to be true that a child who stays in contact with his parents but abuses drugs and alcohol and goes through money like water through a sieve is more likely to receive his share than the successful, prominent child who doesn’t call on Christmas.
In Utah there is no requirement that a parent leave any property to a child. If you wish to disinherit a child, your will 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 the proverbial “one dollar” to an otherwise disinherited child. Giving one dollar, or some other nominal amount, to a child instead of his or her full share stems back to the ancient notion of “cutting off an heir with a shilling” found in early Roman law. It was then thought that the testator had lost his memory or mind unless he gave some gift to each child. Although those “one dollar” provisions still turn up in many wills, they simply are not necessary to effectively disinherit a child.
Some would also like to give the reason in their will for the child being disinherited. There are two main reasons to approach this cautiously. First is that it may raise a question of fact that can be contested. For example, suppose you say in your will that your child is disinherited because he hasn’t 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 to not give the reasons for disinheriting your child in your will. 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 estate plan documents.
Sean Sullivan is a shareholder with the firm of Brindley Sullivan, PLLC, 382 S. Bluff Street, Suite 150, St. George, UT 84770, (435) 673-9220.