Clients choose to disinherit a child for many reasons. As an estate planning attorney, I often find that clients feel the need to justify this decision to me. While it’s helpful for an attorney to understand family history and dynamics, it is not our role to judge or attempt to influence the decision. However, it is the role of the attorney to advise on alternatives and ensure it is an informed decision. I emphasize to clients that disinheriting a child is a significant decision. I also ensure clients are aware of alternatives, such as leaving assets in a trust or simply reducing, not eliminating, the child’s inheritance.
Clients cite a range of reasons for disinheritance, including estrangement or a lack of relationship, history of conflict or strained family dynamics, life choices or values with which they strongly disagree, past financial assistance provided to the child, and drug addiction or irresponsible financial habits.
There are poor or misinformed reasons for disinheriting a child. For example, some clients consider disinheriting a child due to a disability. Many clients are unaware that a third-party special needs trust allows them to leave a full share to a disabled child without affecting eligibility for public benefits. Secondly, past financial assistance is generally a poor reason to disinherit a child. There is equalization language that can be included in a client’s estate planning documents to ensure that the past financial assistance is considered as an advancement of their inheritance and that requires equalization of the estate at death. In some cases, the language can effectively disinherit the child if the equalization formula fully eradicates the child’s share. Additionally, trusts can also be an effective solution for a child struggling with addiction, mental illness, or poor money management.
If a client ultimately decides to proceed with disinheriting a child, what tools are available to limit the chance of a successful challenge by the disinherited child?
The most powerful, but also most extreme, option is to probate the will or validate the trust during life. North Carolina law allows for a living probate and validation of a revocable trust process, which enables a testator or settlor to obtain a judicial declaration that their estate plan is valid while they are still alive. This procedure is governed by Article 2B of Chapter 28A of the North Carolina General Statutes (for wills) and Article 4C of Chapter 36C of the North Carolina General Statutes (for revocable trusts). The testator or settlor files a petition with the clerk of superior court (for wills) or in superior court (for trusts), seeking a binding judicial declaration of validity. If granted, this ruling is binding on all parties to the proceeding and prevents those individuals from later contesting the document. While fully effective, living probate and revocable trust validation requires significant time, cost, and court involvement, precisely what many clients wish to avoid.
There are less formal, yet potentially effective, ways to protect your plan from being challenged by a disinherited child.
First, while wills and trusts are private documents, providing advance notice to a disinherited child may defuse future conflict. In my experience, surprise disinheritance is a major trigger for litigation. A child caught off guard may act out of emotion rather than logic.
Second, handwritten wills and trusts or documents downloaded from the internet which disinherit a child are prime targets for litigation. A qualified estate planning attorney will follow protocols and maintain detailed notes when a client makes a significant decision like disinheriting a child. This professional recordkeeping serves as critical evidence in defending the validity of the client’s documents.
Third, it is important that a client’s beneficiary designations align with the terms of their will or trust. For instance, if a will disinherits one child, but a life insurance policy still lists all children as equal beneficiaries, this inconsistency may undermine intentions and invite litigation. In addition, consider writing a personal note or letter explaining the decision. If possible, obtain a physician’s letter dated near to the execution of the estate plan stating that you have full mental capacity. These steps help defend against claims of diminished capacity or undue influence.
Lastly, when creating or revising your estate plan, do not involve beneficiaries in the process, especially those who may benefit from a disinheritance. Having another child accompany you to the attorney’s office or take part in your decision-making could later be construed as coercion or undue influence.
Conclusion
Clients disinherit children for many personal reasons, often with heavy hearts. While there are alternatives to full disinheritance in many cases, including trusts or reduced inheritances, the ultimate decision lies with the client.
If full disinheritance is chosen, the living probate or trust validation processes offer a strong, formal method to validate the plan, but come at the cost of time, fees, and court involvement. Instead, clients can adopt informal yet effective protective measures, such as involving an attorney, maintaining consistency, documenting intent, and avoiding undue influence.
By understanding the legal tools available and taking the right precautions, clients can ensure their wishes are honored and reduce the risk of future litigation.
About the Author:
Andrew M. Brower is a Board Certified Specialist in Estate Planning and Probate Law at Law Firm Carolinas.