Is It Possible to Leave a Child Out of My Estate Plan?
California law presumes that you will want to include your children and spouse in your estate plan. While for most families this will be the case, there are times when an individual may elect to leave certain family members out of their estate plan for personal reasons. Perhaps you plan to soon separate or divorce from your spouse or maybe your child has a drug or gambling problem that makes you fear giving him or her funds. Whatever your reason, you should know that you will need to take steps to legally disinherit your loved one so that your wishes will be honored per California law posthumously.
Disinheritance Must Be Express
In order to protect your immediate loved ones (your spouse and children), California law will presume that you intend to provide for them in your estate plan. Should you draft an estate plan and simply leave out your spouse or a child, you run the risk of the court concluding this was done in error. The court may decide to give a portion of your estate to the left out loved one.
To avoid your assets going towards an heir you are attempting to leave out, you will need to expressly disinherit the loved one in question. You will want to insert a clause that states you have purposefully elected to forego offering any provisions for the disinherited loved one. This will prevent the court from concluding your loved one was forgotten.
Even further, you should consider inserting a no contest clause. A no contest clause provides that an heir who contests the will or trust will be disinherited. California law, however, restricts enforcement of these clauses to certain limited circumstances. In California, the clause will only be enforced if the heir brings a direct contest without probable cause. It may also be enforced if, so long as the clause contains language to that effect, a filing is made without probable cause challenging the transfer of property or based on a creditor’s claim on an estate.
At times, it is beneficial to create a living trust as opposed to relying on a traditional Last Will and Testament should you intend to disinherit a loved one. With a living trust, the contents of the trust will remain private, which may remove the matter from the public eye. While a trust can still be challenged, a trust created with the help of an attorney while you are still healthy and fully functioning has a lower chance of a valid challenge. Contact an estate planning lawyer for more help with creating an estate plan that meets your desires.