Not all parents enjoy a warm relationship with all their children. I’ve met with many parents – some pained, some resigned, others angry – who have been estranged from their children for years. They may have tried reaching out and been spurned by kids who want nothing to do with them. Or the parents may find the child’s behavior so egregious or heartbreaking that they have just given up.
You’re not legally required to leave your estate to adult children
In these situations, parents often ask if they are obligated to leave anything to the estranged child. The answer is no. Under Florida law, you may disinherit an adult child entirely, or leave him as little as you desire, unless there is a court order in a divorce requiring the parent to do so. This could be part of a child support order for minor children; or a property settlement agreement where the parties have agreed and contractually obligated themselves to make provisions for their children, whether the children are minors or adults.
Acknowledge his existence, provide no reasons
If you plan to disinherit an adult child, or leave him less than what would probably satisfy him, it is crucial to create an ironclad estate plan. If you die without a valid Florida estate plan, Florida intestacy laws govern who gets your assets. And guess what: Florida law 732.103 states that if there is no surviving spouse, your estate passes to your lineal descendants.
The law requires that you recognize “the natural objects of your bounty” which of course includes your children. Therefore, if you wish to disinherit a child, I recommend that you acknowledge his existence in your Will and/or Trust by stating in the document that “For reasons known to me, I make no provision for (child’s name) and/or the child’s lineal descendants.” Refrain from spelling out the actual reason you are making no provision. If you state a reason, you may provide a jumping-off point for the child to mount an estate challenge. Not revealing your reasons reduces the likelihood that your disgruntled heir can successfully challenge your dispositions.
Even $1 can open up a can of worms
People frequently ask if, as a way of acknowledging the child, they should leave him $1. This is a bad idea, for several reasons. First, leaving the child any amount automatically gives him the legal right to obtain information about your estate, without having to file a lawsuit. Second, even that paltry $1 gift must be delivered to the child and a receipt obtained. If a receipt cannot be obtained, the $1 gift will have to be filed with the registry of the court to be held for the beneficiary. All of these administrative steps incur additional costs, create delays, and cause unnecessary headaches for your Personal Representative or Trustee. Moreover, as you might expect, costing your estate money, creating delays and annoying your Personal Representative or Trustee is exactly what many disinherited children have in mind. I have seen cases where the child refused to take delivery of his “gift,” ignored certified mail, refused to sign receipts, and threw up every possible obstacle to bog down the smooth administration of the estate. He need not launch a formal lawsuit to create problems, delay the Florida probate or trust administration process, and create hassles for your beneficiaries.
Ways to leave something yet give child no ability to interfere
Occasionally a client wants to leave an estranged child a modest amount. I usually recommend that they exclude that child as a beneficiary under the Florida Will or Trust, and instead, name him/her as the designated beneficiary of a specific asset, such as a bank account that is payable on death by the bank to the beneficiary, keeping your estate and its Personal Representative and/or Trustee out of the process. Because the asset has a designated beneficiary, it will pass outside the Will or Trust. The Personal Representative or Trustee should know about this account, and when the time comes, should request that the attorney contact the child or the bank with the information about the account, and a copy of the parent’s death certificate. The child can then claim his/her inheritance on his own, and will have no opportunity as a beneficiary of the will or trust to create problems for the Personal Representative or Trustee.
No contest clause not valid in Florida
Another question I’m asked with regularity is whether a “no contest clause” is of value. A no contest clause states that a beneficiary who challenges the estate will receive nothing. Clients hope this will discourage a child from making trouble when he/she finds out they are getting nothing, or a sum that is sure to disappoint. Although that may be viable in other states, under Florida law a no-contest clause, either in a will or a trust, is unenforceable.
As a parent, I feel the pain of clients whose relationship with an adult child has been fractured. If this is your situation, I wish you and your family a speedy and happy reconciliation. But if that is not to be, you are entitled to do whatever you want with your hard-earned assets. Contact our estate planning lawyers for a consultation to discuss your needs.
To read the Florida Probate statutes online (an excellent cure for insomnia!), click here.