Disinherit

Do You Really
Want to Disinherit Someone?

Money Matters Radio – Estate Planning Q&A with Gary
Goldberg

By: Martin M. Shenkman, Esq.

Introduction/Overview:
Family dysfunction seems the norm. The Cleaver family was
really fictional (sorry to break your heart on that one)! Occasionally, a parent
may believe they should disinherit a child. Is this really the way to go? And
if it is, are there better ways to do it?

√ Question: Let’s start with a
tangential issue that is pretty important. What role does the attorney have in
this process?

√ Answer: Needless to say, the
lawyer drafts the will, and will often thus become the instrument of the
family’s destruction. If you tell your attorney you want to disinherit someone,
and they don’t spend some serious time trying to address with you why, and suggest less
harsh alternatives, you should really assess if that is the right attorney for
you. Remember, some lawyer somewhere left $12 million to Leona Helmsley’s dog, Trouble, instead of her own grandchildren. That was unnecessarily destructive
and cruel. You might be sure of your wishes, but you want an attorney that will
talk you through issues and not be a milk toast.

√ Question: Why do people do
this?

√ Answer: Sometimes there are
really objective reasons. Heirs have often done some really ugly stuff and
might very well deserve to be disinherited. Too often, people disinherit heirs
because they were hurt that the relationship wasn’t more. People really should
differentiate the two situations, because they are different. Disinheriting
someone because they did not call enough or show the level of warmth you wanted
is a lot different than disinheriting a child who stole from you or tried to
have you declared incompetent and name themselves guardian when you really did
not need to give up control.

√ Question: What should people
do if they do determine that they want to disinherit
someone?

√ Answer: First, have your
lawyer analyze the situation with you. Better yet, consult with a family
counselor, psychologist, or psychiatrist about the situation. Be sure you are
understanding and clear on what you are doing, why you are doing it, and how to
do it. Going into the process in a deliberate manner might give you insight on how
to best handle it, to leave the smallest destructive wake behind you. Once the
decision is made, talk to your lawyer. In the movies, the person disinherited
typically gets $1 or some other insult. The downside of that, is that because
the person is an heir, state law might give them the right to a notice concerning
any proceedings and a copy of your will. Ignoring them in the will is really
dangerous because they can sue, claiming the lawyer mistakenly left out their
name. The better approach might be to expressly mention them, but say you’ve
left nothing to them, for reasons known to you. If you state a reason, it can
create more malice and hard feelings. Worse, if the person disinherited
challenges the will, can they gain some advantage by proving your reasoning was
incorrect?

√ Question: Any last
points?

√ Answer: Great set up. The last
point is the last point. How do you want to be remembered? Whatever you put in
your will or a final letter may be the legacy you leave. Is it really advisable
or appropriate to leave ugly and hurtful language. What if you reconcile on
your deathbed? What if you misunderstood? What if you’re advanced age and the
accompanying cognitive declines have skewed your thinking?