If you have children, they are your heirs, as is a surviving spouse. Both heirs and surviving spouse may or may not be entitled to inherit your estate, depending upon the laws of your state and your estate plan. In some states, you aren’t required to include your child (or children) in your last will and testament, reports a recent article, “Estate planning and the omitted child” from Lake County Record-Bee.
Unless you have a valid will, trust, or properly completed beneficiary designations, a child you might have wanted to omit may inherit a portion of your estate regardless of your wishes. The best way to control how your assets are distributed following your death is simple: have an estate plan.
A disinherited or omitted child may choose to litigate. However, estate plans can be created to exclude one or more surviving heirs and make it harder to challenge. You will want to work with an estate planning attorney to draft a will containing the correct provisions.
Depending upon your state of residence, there may be laws protecting surviving offspring who have been left out of a will or trust. In most cases, protection for omitted children who were born or adopted after you’ve finalized your documents may be stronger. In other cases, they may not have any protection.
A recent case in a California court shows how complicated this can get. A man’s will only included two children from two marriages. It didn’t include four other biological children, one of whom the decedent didn’t even know he had fathered when his will was signed. The unknown daughter took her case to court, claiming she was a biological child and deserved to inherit part of his estate. The court ruled against her, deciding his intent was only to provide for two of his children.
In general, a child who has been disinherited won’t receive an inheritance if the will maker intentionally left them out of the will, if all the decedent’s assets were left to the parent of the omitted child, and if the child was left with assets outside the estate.
This is why people are advised to update estate plans and check beneficiary designations when a child is added to the family, whether by birth or adoption.
Disinheriting children or spouses requires the experience and knowledge of an estate planning attorney to preclude litigation or prepare for an estate to be challenged. How this is done depends upon the laws of the state, so a local estate planning attorney will be your best resource.
Reference: Lake County Record-Bee (Sept. 21, 2024) “Estate planning and the omitted child”
