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PERSONAL FINANCE

Disinheriting Family Members

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The word " disinheritance" probably brings to mind thoughts of family fights, stress and strife. But there are many reasons why a someone might not want to leave property to a relative; it isn't always about strained relationships. Perhaps you're in a second marriage to someone who's well-off, and you're more concerned about providing for your children from a previous marriage. Or maybe one of your children has struck it rich as an entrepreneur, while another child or grandchild has special needs. Then again, maybe you have had a falling-out with a family member, and you don't want to leave that person a penny.

It's easy to disinherit anyone other than your spouse or a child. The rule is very simple: anyone not mentioned in your will won't inherit any of your property. But rules for spouses and children are somewhat more complex.

Disinheriting Your Spouse

In most states, you cannot disinherit your spouse completely. If you live in a community property state (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin), and only if you have made a written community property agreement, your spouse automatically owns half of what either of you earned during your marriage, unless you have a written agreement to the contrary. You can, however, do whatever you like with your half of the community property and with your separate property.

In all other states, there is no rule that property acquired during marriage is owned by both spouses. To protect spouses from being disinherited, these states give your spouse the right to claim 1/4 to 1/2 of your estate, no matter what your will provides. But keep in mind that these provisions kick in only if your spouse goes to court to challenge your will. If your spouse doesn't object to receiving less than the share set out by law, your will will be honored as written.

Example:

Johanna's will leaves $80,000 to her fourth husband, Fred, and divides the rest of her property, totaling almost $500,000, among her three sons from previous marriages. If Fred is happy with his inheritance, everything will go according to Johanna's plan. But if Fred wants more, he can claim a share of Johanna's estate, which will be substantially greater than $80,000. If he does, Johanna's three sons will share what's left.

If you don't plan to leave at least half of your property to your spouse in your will and have not provided for him or her generously outside your will, you should consult a lawyer--unless your spouse willingly consents in writing to your plan.

Disinheriting a Child

Your right to disinherit a child is restricted by laws that give inheritance rights to minor children and that protect children of any age from accidental disinheritance.

Some states protect children under 18 from the loss of a family residence. For example, the Florida constitution prohibits the head of a family from leaving his or her residence to anyone other than a spouse or minor child if either is alive.

Most states have laws to protect against accidental disinheritance; if a child is born after you made your will, these laws assume that you accidentally forgot to revise your will to include that child. The overlooked child has a right to the same share of your estate as he or she would have received if you'd left no will. The exact amount usually depends on whether you leave a spouse and on how many other children you have, but it is likely to be a significant percentage of your property. In some states, these laws apply not only to your children, but also to any of your grandchildren by a child who has died.

If you decide to disinherit a child, or the child of a deceased child, your will should clearly state that intention.

Revise Your Will When Your Family Changes
Significant family changes always signal the need to revise your estate plan. In particular, you should make a new will if you get a divorce, or if a child is born or dies.

In several states, getting divorced automatically revokes gifts made to a former spouse in your will. In some states, however, your ex-spouse will still be entitled to take property as your will directs. If you remarry, state laws become even more complex. To be on the safe side, if you get divorced, make a new will that revokes your old one. If you want to disinherit your former spouse, simply leave him or her out of your new will--that will do the job.

If you have a new child after preparing your will, revise your will to account for the new child. If you don't, your existing estate plan will likely be disrupted when that child claims his or her share of your estate under law.

If a grown child dies, leaving children (your grandchildren), you should make a new will to provide for or disinherit these grandchildren. Then, make sure that all property you left to the deceased child is redirected to other beneficiaries.

Copyright 1999 Nolo.com, Inc.




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