Most states allow for a parent to disinherit a child. Those that do not still allow for partial disinheritance. Whether fully or partially disinherited, a child may still have rights to their inheritance. They key is to prove the child was disinherited for unjustifiable reasons, the parent lacked capacity when they disinherited the child, the parent was unduly influenced to disinherit the child, or the parent was not allowed to disinherit the child from the trust created by a deceased parent. Let’s explore these themes.
Is it legal to disinherit a child?
In most states, it is legal to disinherit a child for any reason or no reason at all. In some states, where “forced heirship laws” still exist, a child may only be partially disinherited. Regardless of the level of disinheritance, a child may only be disinherited by a parent with capacity acting without undue influence, meaning they are of sound mind and acting of their own free will. What’s more, if the parent is disinheriting a child for some reason, that reason must be factually accurate. Finally, to disinherit, the parent must have the authority under the will or trust document through which they are disinheriting the child.
How can a child fight disinheritance?
While it may not necessarily be illegal to disinherit a child, there are several claims that a disinherited child may be able to pursue to seek recovery of their rightful inheritance:
Undue Influence or Duress
If a child is disinherited as a direct result of undue influence committed by an abuser, then the disinherited child has a legal case to claim their rightful estate assets. An example of undue influence could be a step-parent withholding sexual relations from the child’s parent unless the child is disinherited. Another example is threat of physical violence or threat of removal of care services by a child against a parent unless the child’s sibling is disinherited. We often see lack of mental capacity or even physical capacity, which create opportunity for the abuser, coupled with undue influence or duress claims.
Mental Incapacity. If it can be demonstrated that the parent was NOT of sound mind when they disinherited the child, then the disinherited child has a legal case to claim their rightful estate assets. An example of mental incapacity could be a parent suffering from cancer who is heavily medicated, or a parent who is schizophrenic and suffering from delusions. It is critical that the mental issue occur at the time the child was disinherited and impact the parent’s functional ability to make such decisions.
Mistake of Fact
If it can be shown that the parent disinherited the child due to a reason that can be proven untrue – e.g. the child was believed to be a drug addict – then the child may be able to invalidate and avoid the disinheritance. These claims most commonly are coupled with undue influence/duress and incapacity claims, where the parent is frail and influenced by a step-parent, other child, or caregiver to disinherit the child for reasons that are not true but the parent is unable to appreciate – e.g. a caregiver telling a parent with Alzheimer’s that the child never visits, does not care about the parent, and the caregiver is the only one who cares for the parent and, therefore, the parent should disinherit the child and give the caregiver the estate.
Lack of Authority
Often a parent will overstep their ability to disinherit a child and attempt to disinherit the child not only from the portion of the estate that the parent owns/control, but also from the portion of the estate that the previously deceased parent owned and left for the child. The majority of estate plans provide that after the first parent dies, their share of the estate becomes irrevocable, meaning it cannot be changed. Most surviving parents don’t realize this, and either of their own volition or in combination with being unduly influenced they try and disinherit the child from their and their deceased spouse’s shares of the estate. Because the plan was irrevocable and could not be changed, they can’t do that.
What are the legal rights of a disinherited child?
A disinherited child has the legal right to receive a copy of the document that purports to disinherit him or her. A disinherited child also has the right to challenge the purported disinheritance for any of the reasons discussed previously. The key is to consult a probate litigation attorney or trust litigation attorney early to ensure key deadlines aren’t missed.
How much inheritance can I get?
If the cause of the disinheritance was the result of undue influence/duress, mental incapacity, mistake of fact, or lack of authority, we commonly see the disinherited child receiving a substantial portion of the inheritance they were entitled to receive prior to being disinherited. It all depends on the relative strengths and weaknesses of your case. That’s why it’s important to consult a probate litigation attorney or trust litigation attorney early so they can help determine whether your case is worth pursuing, and what likely outcomes may be. In many cases, we have been able to help heirs and beneficiaries recover 100% of their rightful share, and often in only a few months. They key is to start early with counsel, dig deep, and initiate court processes so you have a mechanism to secure a resolution or take the case to trial.
How can a disinherited child contest a will or trust?
Contesting a will or trust is fairly common and straight-forward. In fact, every day tens of thousands of disinherited children contest wills and trusts, seeking their rightful inheritances. The key is to gather the important documents – e.g. the will or trust that disinherits you, along with earlier versions of those documents, if any – along with the key facts and consult counsel early. A proven probate litigation attorney can help analyze the documents and the facts of your case, and tell you whether you have legal recourse, what the likely outcome may be, how long it will take, and how much it will cost.
How much does a probate litigation attorney cost?
Probate litigation can be expensive, but many lawyers, like RMO, offer alternative fee arrangements, including contingent fee and hybrid fee arrangements, if you cannot afford or do not want to pay hourly. Don’t let fear that you “can’t afford it” deter you from taking advantage of a consultation with a probate litigation attorney who may be able to help you, and in an affordable way.
What should I do if I think I was disinherited unjustifiably?
Contact a probate litigation attorney the moment you discover you were disinherited. The initial consultation should be free, just ask. We’re always happy to consult.
Do I need a probate litigation attorney near me?
We recommend finding an experienced probate litigation attorney familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.
At RMO, we help people like you address issues like these every day.
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About RMO Lawyers, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com