A client may disinherit or leave a disproportionate inheritance to their children for several reasons. No matter why, it’s up to the attorney to understand the motivation and family dynamic so they can best craft a will that is both legally sound and does its best to maintain family harmony.

The objective is not to dissuade the testator from his or her objective or to impose the estate planner’s values, but rather to understand the client’s reasoning so that advice and drafting will meet the client’s objectives.

Disinheriting a child or making disproportionate bequests to children has received a lot of recent attention. The primary points discussed were how best to do so. This article will try to go a bit deeper, explaining why before suggesting how.

This article deals only with the treatment of children. It does not deal with the rights of spouses who may not be disinherited in the absence of a binding premarital or postmarital agreement.

In Continental Europe and other places where civil law is the rule, children cannot be disinherited or treated unequally. They are entitled by law to fixed percentages of a parent’s estate. Unless the child is a minor or disabled, the inheritance must be made promptly on the death of the parent and cannot be conditioned or held in trust.

The lack of forced heirship rights for children in the U.S. gives common law testators the freedom to disinherit children and/or to treat them disproportionately. This ability must be exercised with a valid Will. If a person dies intestate (without a valid Will) and leaves a surviving child or children, they will inherit equally, subject to the rights of a surviving spouse.

Caveats That May Apply

If a U.S. testator owns real estate in a civil law jurisdiction with forced heirship rules, that property will be subject to those rules.

If the estate is subject to laws of jurisdictions that do not follow civil or common law (e.g., some Middle Eastern countries following Sharia law), the testator may have limited rights of disposition.

With the ability to disinherit children or treat them disproportionately comes the responsibility to think about often complex intra-family issues. Tax concerns can be complex, but unlike tax planning, there is no single “right” answer here.

Reasons for disinheritance or disproportionate bequests are varied:

• Subjective reasons: estrangement, disapproval of a spouse or lifestyle, failure to meet expectations
• Objective reasons: unequal financial success, contributions to family business, prior gifts/support, or the size of the estate

Children from multiple relationships add further complexity.

The first obligation of an estate planner is to fully understand:

• the client’s financial situation
• the full family structure, history, and dynamics

Only then can the lawyer intelligently discuss the client’s intent and motivations.

Possible Planning Alternatives

• Trusts or conditional bequests (e.g., tied to achievements)
• Carefully structured trusts as a “middle ground” between inheritance and disinheritance
• Fully discretionary trusts or conditional distributions
• Charitable foundations involving children

Trusts can:

• Protect against creditors or spouses
• Prevent irresponsibility
• Encourage or discourage behavior

Once the objective is determined, the document must be drafted. Testators have the right to disinherit one or more—or all—children, with or without reason, as long as they have testamentary capacity and are not subject to undue influence.

A common goal is fairness—not necessarily equality—while preserving family harmony and avoiding resentment or litigation.

Considerations for Estate Planners

• Clearly identify disinherited children by name and relationship
• If reasons are “positive,” briefly state them
• If the reasons are negative, say as little as possible
• If based on need or disability, explain briefly

Instead of including detailed explanations in the will, a separate affidavit may be useful. This can:

• Explain reasoning to family
• Help defend against claims of incapacity or undue influence

Witnesses should:

• Personally know the testator
• Confirm capacity and independence
• Verify no improper influence was present

Potential Legal Challenges

Even though testators have broad rights, decisions can be challenged:

• Manifest error: factual mistake (e.g., omission of a child)
• Undue influence: improper pressure affecting decisions
• Lack of testamentary capacity: not understanding assets or heirs

Preventive measures (like videotaped execution) may help, but can also raise concerns.

An in terrorem clause may help, but only if there is a significant bequest to forfeit.

There is no single right or wrong way to handle these issues. It requires the advisor to act as both attorney and counselor.