Things to Consider When Disinheriting an Heir

A parent may disinherit a child for many reasons. Celebrity moguls often disinherit children to keep them grounded. Others disinherit a child due to certain issues, such as a history of substance abuse or abandonment that has led to a fractured relationship. Regardless of why a parent desires to disinherit a child, several consequences should be considered when establishing such an estate plan.

Some parents, believing a particular child to be independently wealthy, may desire to disinherit that child to provide for another child with greater apparent financial needs. Despite appearances, however, it is not uncommon for people who appear to be financially stable to be suffering from crippling debt or have insufficient savings to deal with a future family crisis.

A parent may seek to disinherit a child to incentivize them to attain their own wealth. There is, however, a sense of permanence in disinheritance and instead of motivating a child, disinheriting may have the opposite effect of hindering a child’s future development if the child cannot handle the emotional burden of being disinherited.

Special care should be taken in devising an estate plan for married couples with children from prior relationships. Most trust and estate litigation involves new spouses and children from a prior relationship. One may desire to leave everything at your death outright to a new spouse and allow the new spouse to provide for your children at their death if they choose. Family dynamics change over time and despite having a good relationship with a deceased spouse’s children from a prior relationship, a new spouse may be inclined to only provide for their children at their death. Regardless of your intentions, by implementing such a plan you may have effectively disinherited your own children.

Disinheritance considerations are not limited to parent-child relationships. Spousal disinheritance is a difficult topic of concern for many. In Tennessee, and most other states, there are certain rights allotted to surviving spouses, which allow a surviving spouse to elect to take a certain percentage of assets from a decedent spouse’s probate estate. In Tennessee, this is called an “elective share.” The proportionate elective share in Tennessee is determinative upon the duration of the marriage.

When disinheriting a natural heir, it is usually best to be clear of your intentions, but to avoid negative or otherwise spiteful opinions or rhetoric concerning the disinherited person. In Tennessee, it is generally advisable not to leave a nominal bequest to someone intended to be disinherited because providing even a nominal bequest may afford the person certain notice rights and privileges during the estate administration. Simply demonstrate the intention to disinherit in an unemotional, factual fashion.

Disinheriting a natural heir should be done with extreme caution and with the assistance of an experienced estate planning attorney. Failure to do so may cause tension and even litigation between family members when you are gone which, with careful planning, could be mitigated or avoided altogether.

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