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How to Deal With an Estranged Child in Your Estate Plan

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Not all families get along. Some of you are shaking your head in agreement after reading the first five words of this column. If you are having problems with a child, you may not want them to benefit from your estate.

There are several strategies for dealing with an estranged child in your estate plan:

  • Outright disinheritance. Pennsylvania allows a parent to disinherit a child.  While disinheriting a child increases the risk of a will contest, there are steps to minimize the odds of a successful will contest: make sure your will is properly executed, write a letter to the estranged child explaining your reasoning, remove any appearance of undue influence, and specifically mention the disinherited child in the will.

Acknowledging the disinherited child expressly in your will makes it is more difficult for them to challenge the will on the grounds that you lacked legal capacity to make the will. Why? To have testamentary capacity, one must, among other things, know the “natural objects of his or her bounty” (translation: you must know your closest surviving family members).  Simply not mentioning the child in your will could give fodder to an argument that the child wasn’t mentioned because you did not know the natural objects of their bounty and, as a result, lacked testamentary capacity.

  • Smaller inheritance. If you do not want to disinherit your child entirely or wish to make it less likely the estranged child will contest the will, consider leaving them an inheritance that is smaller than what you leave other beneficiaries.  Leaving a token inheritance may prevent a will contest, especially if you include a no-contest clause in the will.  A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. Caution should be taken in relying too much on a no-contest provision as Pennsylvania law invalidates a no-contest clause if “probable cause exists” for instituting contest proceedings.
  • Put the inheritance in a trust. If you do not want to leave your child an inheritance because you are worried about how they will use the money, you can leave their inheritance in a testamentary trust. You can instruct the trustee when and how the funds should be disbursed. For example, you can instruct the trustee to disburse the money in small increments or only if the child meets certain conditions, like staying drug- or alcohol-free or working a full-time job.

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