If you're thinking about disinheriting a child, you probably have a good reason for considering this option. And while you aren't obligated to explain your reasons to anyone, letting your estate planning attorney in on your reasoning can help you best achieve whatever your aim is in disinheriting a child.
If, for instance, your child, like so many in this country, has fallen prey to addiction, you may be concerned about them using their inheritance for drugs. Obviously, that could have devastating effects for their health or even their life. In such a case, you may be able to create a trust that will pay directly for their living expenses and even drug or medical treatment. In that way, you could provide for them and promote their health without risk of their wasting their inheritance and without resorting to disinheriting them.
Of course, in some circumstances, there's no estate planning work-around; you genuinely want or need to disinherit your child. If this is the case, the answer is yes, it is possible to do this. It's also possible to attempt to disinherit your child and for them to wind up taking from your estate anyhow. Here's why, and how to make sure your intentions are honored.
In the 2014 Ohio case of Chambers v. Davis, the deceased intended to disinherit her daughter and grandson, and left certain items in her will to her niece. The niece in question and one other person witnessed the will. The will itself did not specify what should happen to the residue of the estate after specific bequests were honored.
Ohio law, specifically ORC section 2107.15 renders invalid bequests made to a person who is one of only two witnesses to a will, such as the niece in this case. Because the will lacked a residuary clause, the assets intended for the niece had to be distributed according to Ohio's law of intestacy, that is, as if the deceased had died without a will. The result was that the daughter the deceased had intended to disinherit received some of her property after all.
Lesson one, per the case above, is to make sure that your will, if you have one, is validly executed. Otherwise, your child is likely to inherit under Ohio law. But there are other measures you can take as well in order to make sure that your child is actually disinherited. One of these is to leave your child a small, specific bequest in the will, such as one dollar. This will prevent the child from arguing that their omission from the will was unintentional. You can also place a clause in your will stating that you have provided in your will for everyone you intended to inherit from you, and that any omissions are deliberate.
You might also consider creating a trust for the bulk of your assets, and specifying that the person you want to disinherit is not to receive distributions from the trust. You can also choose to gift certain sentimental items before your death to the person you want to have them. If you do this, write them a brief note in your own handwriting explaining why you are giving the item to that person. Not only will the note serve as a cherished memento, it can double as proof that they didn't steal the item or trick you out of it.
Even though there are effective means to disinherit a child in Ohio, you may want to think twice about doing so. Leaving part of your estate to some of your children and disinheriting another is likely to create hostility between your children and possibly lead to a will contest, which may ultimately reduce the size of your estate and hurt your other children emotionally and financially. Whatever you elect to do, discuss the likely effects with your estate planning attorney before putting pen to paper.
You may also be interested in: