In movies, it seems like parents are disinheriting their children left and right for reasons ranging from a nasty argument to marrying someone the parent doesn’t like to remarrying a new spouse. In fact, the circumstances surrounding disinheritance are far more complex and often messier. Choosing to disinherit a family member is a sensitive subject, and it’s not one we at Brian M. Douglas & Associates take lightly. Some attorneys say as many as 30% of their clients disinherit a family member.
If disinheriting family members is so common, why is it so rarely discussed? We decided to sit down and write this post to address a topic that is often left unexplained. If you have questions or concerns about what disinheritance means for your estate plan, feel free to give us a call.
Georgia is a Unique State
Throughout the United States, there are statutory protections in place to prevent total disinheritance of spouses and minor children. In the State of Georgia, however, the law treats this situation a little differently. Instead of requiring that a certain minimum percentage go to the surviving spouse and any minor children, the state of Georgia simply allows a surviving spouse and/or minor children who have been excluded from a will to make a claim for one year of support following the decedent’s death. After the year has lapsed, the surviving spouse and minor children cannot ask for additional support.
Basically, this legal environment treats the children and surviving spouse as creditors of the estate. The spousal support law does not extend to former spouses or adult children.
Disinheriting Adult Children
When talking about disinheriting family members, the most common scenario is adult children. Under Georgia law, it is possible to completely disinherit adult children. Parents do this for many reasons: if they do not trust that their child would be responsible with the money, if the parent and child do not have a relationship, and even if the parent believes the child does not need the money. We have seen this before: a parent may wish to disinherit a particular adult child who is better off than the parent’s other children. The logic behind this is, by disinheriting one child, the others, who need more, will receive more. While we do understand the sentiment behind this decision, we often caution against it. Circumstances can change and just because one child is doing better than others at the time the will was drafted doesn’t mean they will always be financially stable.
Omission Is Not Enough
Some parents think the gentlest way to exclude an adult child from inheritance is to simply not mention them at all in their will. That’s really not enough. A judge may assume that the omission was an oversight or a failure to update the will. Instead, it is important to expressly exclude any individuals you do not wish to inherit from your estate.
The same is true for your own parents or any extended relatives. Although, unlike spouses and minor children, you are not legally obligated to leave anything to your own parents or extended family members, they may be considered your “next of kin.” If, when you pass, you have no spouse or children, your estate will pass to your next closest relatives (first your parents and then to extended relatives). If there is anyone in your family that you do not wish to inherit from your estate, you will need to expressly exclude them in your will.
Wills Can be Disputed
Although they are the most common form of estate planning, wills are not insurmountable. They can be disputed, and it’s not just the rich and famous who have long, painful probate disputes. Any time a will contains a statement excluding a family member or indicating any family disharmony, it is possible that challenges will arise. Unlike contract disputes, that come down to the terms of the contract and the facts, will disputes often come down to relationships and feelings, which can be particularly difficult to glean from the language of a will. That’s why it is so important to be explicit in a will about who you wish to include and exclude from inheritance.
Often, if family members are excluded or believe that they did not receive “enough” from an estate, they will contest. If there is anyone in your family who you believe will try to 1) claim they were promised more than they receive or 2) contest a will because they have been excluded or omitted, it may be best to expressly exclude that person. You can also include a statement in your will that says the deceased has provided for everyone he or she wishes to include in the will and anyone who is left out was excluded intentionally, not inadvertently.
Creating a Challenge-Proof Plan
Of course, no amount of explicit exclusion in a will makes that document immune to legal challenges. Trusts, while not entirely challenge-proof, are a much safer way to ensure your wishes are carried out. Because trusts are not made publicly available and are not subject to court approval, they are far less likely to be challenged by disinherited family members.
A trust is also a great tool to avoid the need for disinheritance entirely. If the reason you are thinking of disinheriting an adult child, for example, is because they struggle with an addiction, a trust may be the solution. Through a trust, you can continue to support your child without giving them a windfall that could be used irresponsibly. To read more about addiction trusts, check out our blog post on the topic.
Families are Complicated
At Brian M. Douglas & Associates, we understand that families can be complicated. Our experienced and compassionate estate planning attorneys are prepared to work with you to tailor an estate plan that is right for you and your loved ones. No two families are the same, so why would you use a one-size-fits-all estate plan? Give our office a call to set up a consultation. Our office number is (770) 933-9009.