“I want to disinherit a child.” Disinheriting family members – especially children – comes up in estate planning conversations more often than you might think. There can be many reasons for doing so, and, ultimately, it’s your money and you have the right to do what you want with it…sort of.
Disinheriting a spouse
Florida won’t allow you to completely disinherit your spouse. Our state made a public policy decision long ago not to support a surviving spouse or minor children with taxpayer dollars just because the deceased spouse didn’t want to – or didn’t take the proper steps to ensure their financial security. So, if you’re married and you don’t leave your spouse at least 30% of everything you own in your Will or Trust, the court will step in give your spouse at least 30%.
If you die without a Will or Trust, your spouse will automatically receive either 50% or 100%, depending on whether either of you have children from other marriages. If you try to leave your Florida homestead (held in your individual name or in the name of your revocable living trust) to anyone except your spouse, that produces an even harsher result because you violated a Florida law.
The only way to disinherit a spouse completely in Florida is to execute a valid prenuptial or postnuptial agreement where you both give up all your spousal rights under Florida law.
Disinheriting a child
Under Florida law, a parent has no legal obligation to leave anything to an adult child. But you’d have to execute a Will or Trust actually disinherit a child. If you die without a Will or Trust, then Florida law kicks in and all of your natural and adopted children will be entitled to a share of your estate.
As I mentioned earlier, Florida won’t let you leave your minor children homeless. If you die with your homestead held in your individual name, your minor children and/or their mother could end up owning your home despite your wishes.
Myths about disinheriting family members
I can’t tell you how many times I’ve heard “I want to disinherit my child, so let’s just leave him $1 so he can’t contest the Will.” Nope. It doesn’t work like that in Florida. Anyone can contest a Will if they’re not happy with their inheritance, as long as they can find a lawyer willing to take the case.
Another one I’ve heard: “I want to disinherit Child X, so don’t even put his name in my Will.” Wrong. If you don’t acknowledge the existence of a child, he can contest the Will by claiming the omission was a mistake.
If you want to disinherit a child, you need to make your intention very clear. The best way to do that is to name the child in your Will or Trust and state in that document that you are specifically disinheriting that person (and her descendants, if that’s the case). You can state the reason if you wish, but it’s generally not necessary unless the disinheritance was really out of the blue and the child won’t have a clue as to why she was disinherited.
And finally, some people still think that the only way to make sure a disabled child or sibling can continue to qualify for much-needed government benefits is to disinherit that person. To keep them in poverty. That may have been the case decades ago, but today we can create Supplemental Needs Trusts (also known as Special Needs Trusts) that will allow a disabled person to continue to receive needed benefits while enjoying a somewhat better standard of living.
Creating an estate plan that actually works takes some thought, time, and knowledge of the laws.