Let’s say you want to leave everything you own to your children, but you can’t stand and don’t trust their spouses. That might make you want to delay making an estate plan, because it’s a hard thing to come to terms with, says a recent article “Dealing with disinheritance, spouses” from the Times Herald-Record. There are options, but make the right choice, or your estate could face challenges.
Some people choose to leave nothing at all for their child in the will, so that if there is a divorce or if the child dies, their assets won’t end up in the daughter or son-in-law’s pocket. For some parents, particularly those who are estranged from their children, this can create more problems than it solves.
Disinheriting a child with a will is not always a good idea. If you die with assets in your name only, they go through the court proceeding called probate, when the will is used to guide asset distribution. The law requires that all children, even disinherited ones, are notified that you have died, and that probate is going to occur. The disinherited child can object to the provisions in the will, which can lead to a will contest. Most families engaged in litigation over a will become estranged—even those that weren’t beforehand. The cost of litigation will also take a bite out of the value of your estate.
A common tactic is to leave a small amount of money to the disinherited child in the will and add a no-contest clause in the will. The no-contest clause expressly states that anyone who contests the will loses any right to their inheritance. Here is the problem: the disgruntled child may still object, despite the no contest clause, and invalidate the will by claiming undue influence or incapacity or that the will was not executed properly. If their claims are valid, then they’ll have great satisfaction of undoing your planning.
How can you disinherit a child, and be sure that your plan is going to stand up to challenge?
A trust is better in this case than a will. Trusts avoid probate, and under Massachusetts law, only trust beneficiaries receive notice of the existence of the trust. Heirs that are not beneficiaries do not receive notice; whereas, with a Last Will and Testament, the Massachusetts Uniform Probate Code provides that notice be provided to all Heirs (as that term is defined in the Code) whether they are named in the Will or not. More specifically, a trust that provides for the distribution of assets at the end of the grantors’ life (in the case of a husband and wife that created a joint trust, the distribution of assets to children would be at the surviving parent’s/spouse’s death, with the assets of the joint trust used for the benefit of the surviving spouse during his or her life) could provide that an outright distribution to a child or children be made or could mandate that the asses continue to be held in trust during the life of the child or children. If there is an outright distribution at the death of the grantor(s) to a child, then the assets would likely be marital assets that would could be lost to a child’s subsequent divorce. If the assets are held in trust after a parent’s death, depending upon the use of those funds and thus the language of the trust, the assets may not be subject to division in the event of a child’s divorce.
This kind of planning is called “controlling from the grave,” but it’s better than not knowing if your child will be able to protect their inheritance from a divorce or from creditors.
With a national divorce rate around fifty percent, it’s hard to tell if the in-law you welcome with an open heart, will one day become a predatory enemy in the future, even after you are gone. The use of trusts can ensure that assets remain in the bloodline and protect your hard work from divorces, lawsuits, creditors and other unexpected events.
Reference: Times Herald-Record (June 6, 2020) “Dealing with disinheritance, spouses”