While you can’t disinherit your spouse in Minnesota, you can disinherit your children. So what is the best way to disinherit a child in Minnesota?
You can “draft around” the child.
You can have an estate plan that divides your estate among individuals who are not the person or child you intend to disinherit. By doing so, your entire estate will be divided among the individuals you have named and this will not include the child you intend to disinherit.
This, however, leaves the disinherited child with the argument that you unintentionally disinherited them. Because of this, it is generally better to specifically “disinherit” the individual in your estate plan. This leads us to suggestion number 2.
You can specifically exclude your child from your will or trust.
While “drafting around” the individual and leaving all of your estate to other named individuals will typically be sufficient, we want to foreclose any argument the child may have that you have unintentionally omitted them from your estate plan. As such, your will or trust should explicitly mention that you are intentionally not leaving anything to your child.
Even if you “draft around” the child and you have also explicitly stated in your will or trust that you are leaving nothing to your child, that child may still decide to challenge your will or trust. If you have left that child nothing, what risk does that child have if they contest your will? If they contest your will and are successful, the gain can be significant. If your child contests your will or trust and loses, but you left them nothing anyways, they may not much, if anything.
As such, it is sometimes best to offer an incentive for your children to not contest your will or trust. This leads us to tip number 3.
Consider including a “no-contest clause” in your will or trust.
A no-contest clause in Minnesota is a clause that is included in your will or trust that essentially takes away any inheritance that would be given to a child if that child challenges your will or trust. For instance, lets say you have given 75% of your estate to your son John and 25% of your estate to your son Jeff. If Jeff challenges your will in court and says that your will should be invalid because you were unduly influenced by John, Jeff would forfeit his share.
Here is what a sample no-contest clause might look like (keep in mind that every estate plan is different and this is not meant to be a one-size fits all clause):
I hope that my financial affairs will be handled expeditiously and amicably following my death. I have carefully considered the provisions in this instrument and firmly believe them to be appropriate. So that my intentions will be realized, I direct that all beneficial interests under this instrument of every person who, directly or indirectly, initiates or joins any proceeding for the purpose of abrogating, setting aside, breaking or changing the effect of this instrument will immediately be revoked and wholly void to the maximum extent permitted by law. All provisions of this instrument shall be given effect as if each such person and all of his or her descendants had predeceased me. I understand and direct that this clause will act as a penalty and a forfeiture, and I request that it be so interpreted by any court called upon to interpret or apply it.
This sounds pretty harsh. Notably, in Minnesota, a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. Minn. Stat. § 524.2-517.
That Minnesota statute essentially says that if you have a good reason for challenging the validity of the Will, the no-contest clause might not be enforced by the Court. As such, no-contest clauses are not invincible from attacks by your children.
Consider using a “nominal” gift in addition to a no-contest clause.
If you don’t leave anything to your child and you have included a no-contest clause, there is no reason for that child to not contest your will or trust. On the other hand, if you have left your child $20,000 and you have included a no-contest clause, that child may wind up losing that $20,000 if they contest your will or trust. You will have to decide what dollar amount is sufficient to keep your child from challenging your will or trust.
When used properly, and in conjunction with one another, all of these techniques create a very high burden for a child to contest your will in Minnesota. When considering whether to disinherit your child, you should also be extra careful with the procedural requirements of executing your will or trust. If you fail to have your will properly witnessed, or there are errors in the document, these types of mistakes open the door to arguments that the will was not executed validly. If your will was not executed validly, the child you intended to disinherit may in fact inherit from you.
If you are considering disinheriting a child in Minnesota, it is always recommended that you speak to a Minnesota estate planning attorney who is experienced in drafting wills and trusts. Do not attempt to do this on your own! Please give our office a call today at (952) 658-6503 if you would like to discuss how to disinherit your child.
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Zach Wiegand is a Minnesota probate attorney and estate planning attorney and the owner of Gold Leaf Estate Planning, LLC. Gold Leaf Estate Planning is an estate planning law firm that also handles probate and trust administration in Minnesota. We serve the Twin Cities metropolitan area with a focus on estate planning for clients in Burnsville, Eagan, Savage, Prior Lake, Lakeville, Apple Valley, Eden Prairie and the South Metro as well as clients in Woodbury, Lake Elmo, Maplewood, Oakdale, St. Paul and the East Metro. Our firm has offices in both Burnsville and Woodbury (Lake Elmo). The firm also handles probate in Dakota County, Washington County, Scott County, Hennepin County, and Ramsey County and most other counties in the Twin Cities Metro area. Zach has been named a Super Lawyer – Rising Star for 2017, 2018, 2019 and 2020. In addition, Zach is a member of the Society of Financial Service Professionals, the Twin Cities Estate Planning Council, and WealthCounsel – a national organization of estate planning attorneys dedicated to practice excellence. You can contact Zach via e-mail at zach@goldleafestateplanning.com or by calling (952) 658-6503. Gold Leaf Estate Planning is located in Burnsville at 3000 County Road 42 W., Suite 310, Burnsville, MN 55337 and in Woodbury/Lake Elmo at 8653 Eagle Point Boulevard, Lake Elmo, MN 55042.
