Disinheritance: More Common Than You Think!
“The power to disinherit is part of the power of testamentary disposition.” – Bradford v. Leake, 137 S.W. 96, 98 (Tenn. 1911)
Every year, we have some clients who are adamant that they want to disinherit one of their children. There are many possible reasons for this. Maybe that child has already received their inheritance from the parent while the parent was still alive, or maybe the parent and child have a strained or estranged relationship. Another common reason is that a child has made poor decisions, and it is important to this parent that the child not receive any money, as the parent would view that as supporting their lifestyle or decisions. It could also be simply that their child has done very well financially, and the parent feels that the child doesn’t have a need for any of the parent’s money. (It is also important to note that disinheritance means that child inherits nothing; it is also possible to just leave children a smaller amount or percentage, and it not be considered disinheriting them.)
Whatever the reason, choosing to disinherit a child is an extremely personal decision and is not one that should be taken lightly. Because the courts view the “natural” succession order to be that children inherit from parents, when your estate plan is different from that, it is important to state expressly in your Will that this decision is intentional.
In In re Estate of James McKinney, a case that was just decided in the TN Court of Appeals in March of 2022, the decedent, Mr. McKinney, had two daughters, Elizabeth and Kathleen. At the beginning of his Will, in a clause titled “Family,” he stated that any references to his Children in his Will meant that he was talking about Elizabeth. There was no mention of Kathleen. Later in the Will, he left the residuary (remainder) of his estate to his children and did not define the term “children” any differently than how it had been defined in Family. Elizabeth argued that that meant Kathleen was disinherited and therefore, she should inherit everything. However, the Appellate Court determined that because Mr. McKinney had not included a statement specifically and expressly disinheriting Kathleen, she would inherit under the residuary clause. We cannot know what Mr. McKinney’s intentions actually were, but we can learn from this case and be as unambiguous as possible in drafting our documents to prevent the Court from having to try to guess at our client’s wishes and intentions. If you do choose to disinherit a child, we include a statement stating that such decision was intentional and include a brief explanation behind that decision.
If you have any questions about disinheritance or your estate planning documents in general, please feel free to reach out to us anytime at (615) 800-4747.