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Can You Avoid Being Disinherited?

In many cases, there may be reasons why someone chooses to disinherit a relative. Some of the reasons may be rational, and some irrational, and in some cases, the disinherited party may be aware that they will be disinherited, while in other cases, it may come as a complete surprise to the disinherited party. If you’re the one disinheriting someone, you should know that there are ways that person can avoid your wishes.

What is Disinheriting and Why Does it Happen

Disinheriting generally means the act of creating an estate document (such as a will or trust) that intentionally prevents someone from inheriting assets. Typically, the person being disinherited otherwise expects to receive assets under the will or trust. The person creating the will or trust may not want an estranged family member inheriting property, or perhaps may not want a spouse of a child receiving assets of the estate or trust.

Familial relationships can be difficult, and there is nothing to be ashamed of for wanting to disinherit someone. But by using basic contractual agreements, parties can often circumvent someone’s wish to disinherit.

Law Allows Parties to Contract Inheritances Away

In a case from 2013, a mother threatened her two sons that she would disinherit one or both of them. The mother frequently changed her mind as to which son would be disinherited, apparently depending on the her mood.

Sensing one of them would be disinherited, but not knowing which one, the boys came up with an agreement that no matter which one ultimately inherited the property, they would share the inheritance equally.

The mother died, left all the property to one child, and the other child sued to enforce the contract between them to split the profits equally. The trial court dismissed the lawsuit, and the disinherited child appealed.

There is no law that prohibits parties from contracting their way around the wishes of your estate documents. Such agreements are valid and binding contracts. The appellate court found that the agreement between the children was binding in that each had volunteered to give up some of their inheritance had they been the one to inherit, creating good consideration for the agreement.

If You Want to Disinherit Someone

If you plan on disinheriting someone, you can ensure that your wishes are carried out by creating one or more trusts. Alternatively, you can simply remain quiet about your intentions to disinherit. However, ultimately, you can’t control what someone does with property once it’s theirs outright and not controlled by a trust, making avoiding this kind of scenario difficult if you leave property to individuals outright.

Estate planning can involve sensitive family issues, and advance planning to make sure wishes are property carried out. Contact Tampa estate planning, business, and probate attorney David Toback to discuss your needs and make sure your estate planning documents are up to date, and reflect your intentions.

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