Estate Planning Cincinnati: How To Disinherit An Heir

On Behalf of | Oct 26, 2017 | IRS Dispute |

ESTATE PLANNING CINCINNATI: HOW TO DISINHERIT AN HEIR Posted on – 10/26/2017 by PJK Deciding which beneficiaries to distribute assets can be a tough decision to make when it comes to estate planning.  In some families, it is clear who should inherit assets at an individual’s death.  In other families, where the family relationships are more complicated due to divorce, remarriage or family disputes, things can get much more complicated.  Disinheriting a family member, however, may be necessary in some cases and may ultimately protect an estate from litigation later on.  On the other hand, disinheriting a family member can cause long term damage to family relationships. Disinheriting someone from an estate must be done using special language that is included in the estate planning documents, whether they consist of a will or revocable living trust.  A disinheritance must be planned for ahead of time when an individual has the mental capacity to execute estate planning documents. The language used can be very simple, such as “I have intentionally not provided for my daughter in this last will and testament.”   In other situations, the language can be much more detailed and personalized, including giving reasons for the disinheritance. The disinheritance language should be included in the dispositive documents.  The dispositive documents provided for the distribution of assets, including the last will and testament and revocable living trust.  If an individual has both a last will and testament and a revocable living trust, then the language should be included in both documents.  It is important to note that no contest clauses are enforceable in Ohio.  A no contest clause provides that if an individual challenges the terms of an individual’s estate plan in court, the heir will be deemed to have predeceased maker of the will or revocable living trust, and therefore will receive nothing from the plan.  However, this type of clause would not act as a deterrent to a disinherited heir, as they have nothing to lose.  On the other hand, if you are looking to disinherit someone, it may make sense to leave them something, say $10,000, and include a no contest clause in your dispositive documents.  Now the heir must weigh the risk of losing their $10,000 inheritance if their lawsuit to challenge the plan is unsuccessful. Whichever approach an individual chooses, it is important that the language in the documents is very clear.  If the language is clear, the disinherited heir will have a very high burden to challenge the estate plan.  They would need to prove that there was duress, fraud or lack of capacity when the estate planning documents were signed. Paul Kellogg is an attorney in Cincinnati with the Phillips Law Firm, Inc. Paul’s practice focuses on providing comprehensive estate planning and probate services to families and business owners, as well as serving as outside general counsel to entrepreneurs and businesses where he provides guidance and advice on a wide variety of transactions and disputes.  He can be reached at (513) 985-2500 or via email at [email protected].   Please explore Paul’s other articles on estate planning and business on the Phillips Law Firm Blog page.  The article is for educational and informational purposes only and does not constitute legal advice. Anyone contemplating taking legal action is urged to obtain proper legal advice from an attorney licensed in your particular jurisdiction. For an initial consultation contact us at (513) 985-2500 or email us at [email protected] or click Chat Now!® to get started immediately.