How to Do I Address an Estranged Child in My Estate Planning?

POSTED ON: October 28, 2021

Perhaps one of the most difficult, and increasingly common, estate planning questions involves the inclusion or disinheritance of an estranged child.

How Do I Address an Estranged Child in My Estate Planning?

For most families, estate planning is a relatively straightforward task, protecting loved ones and preparing to distribute assets. But when parent-child relationships have frayed or fractured, estate planning becomes more complicated and emotional, according to the article from The News-Enterprise titled “Estate planning must account for estranged children.”

The relationship may be broken for any number of reasons. The child may have married an untrustworthy person, have addiction issues, or have made a series of hurtful decisions. In some families, the parents don’t even know why a break has occurred, only that they are shut out of lives of their children and grandchildren.

The reason for the estrangement impacts how the parents address their estate plan regarding the child. If there is an addiction problem, the parents may want to limit the child’s access to funds, and that can be accomplished with a trust and a trustee. However, if the situation is really bad, the parents may wish to completely disinherit the child. Both require considerable legal experience, especially if the child might contest the will.

There are three basic options for dealing with this situation.

One way to address an estranged child in your estate planning is to leave an outright gift of some kind, with no restrictions. The estranged child may receive a smaller inheritance, but not so small as to open the door to litigation.

A second way to address an estranged child in your estate planning is that you can create a testamentary trust in your last will. Testamentary trusts become effective at death, with funds going into the trust and controlled by a trustee. The heir will have no control over the assets, which are also protected from creditors, divorces, or scammers.

Third, the parent can create a living trust during the life of the parent, but which which continues after the parent’s death to protect the assets left to the child in much the same way that the testamentary trust does.  In both a testamentary trust and a living trust, the trustee can be empowered to make discretionary “sprinkling” distributions to the child as the child needs it (rather than risk an inheritance go directly to the child and risk being completely blown), and the trust can own a home for the child (to preven the child from selling the home to get cash).  Many of my clients who have children with substance abuse problems choose these options.

Third is the option to completely disinherit the child. That way the child will not be entitled to any portion of the estate. The language in the last will must be watertight and follow Louisiana’s laws exactly so there is no room for the disinheritance to be challenged.  Keep in mind that Louisiana has not completely repealed forced heirship, therefore your desire to disinherit a child may in some cases be limited by certain restrictions in the forced heirship provisions of the Louisiana Civil Code.

There needs to be language that clarifies whether the child’s descendants (grandchildren) are also being disinherited. If the child is disinherited but their children are not, the descendants will inherit the child’s share as if the child had predeceased his or her parents.

Some estate planning attorneys recommend writing a letter to the child to explain the reasoning behind their disinheritance. The letter could be seen as reinforcing the parent’s intent, but it may also open old wounds and have unexpected consequences.

Your estate planning attorney will be able to clarify the steps to be taken in your estate. This is a situation where it will be helpful to discuss the full details of the relationship so the correct plan can be put into place.

Reference: The News-Enterprise (July 20, 2021) “Estate planning must account for estranged children”

BOOK A CALL with Ted Vicknair today to find out more about how Louisiana’s unique laws can impact your estate planning.

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