Both social and legal custom regard your children as heirs to your estate. However, if you are no longer in contact with one or more of your children, have become estranged from them, or have other reasons why you don’t want them to inherit, Texas law allows you to exclude them in your will in favor of other heirs.
Many parents are surprised to learn that this is an option. This is because at one time, the only way you could prevent a child from inheriting was to bestow all of your money and assets on someone else. The law changed in 1991, and now you can disinherit children by stating the fact in your will.
Although the popular presumption is that parents disinherit because they have a difficult or nonexistent relationship with the child, this is not necessarily the case. Other reasons include:
If you pass without leaving a last will and testament, the Texas laws of laws of intestate succession indicate that if your spouse survives you and all of your children are also the children of your spouse, then your spouse will receive all of your community property (if at least one of your children is not also the child of your spouse, and your children receive all your community property and your spouse retains her one-half interest), one-third of your separate personal property, and the right to use one-third of your separate real property; the balance will go to your child or children and their descendants.
If your spouse predeceases you, the children receive everything. Unless you have absolutely nothing in your estate when you die, the only way to disinherit someone is in your will.
Perhaps you’re not comfortable stating that your son John will not receive anything from your estate, so you just leave him out of the will. The problem with this approach is that if John challenges the will, the court may assume that you mistakenly omitted him instead of intentionally disinherited him. Few parents deliberately leave a child out of their will, so common practice would be in John’s favor.
Therefore, it is essential that you indicate your intentions in your will. You could state something like, “I intentionally make no provision for my son, John Smith.” It is not necessary to give a reason, although you may do so if you wish.
Drawing up a will gives you the opportunity to affirmatively indicate who your beneficiaries are and what you want them to receive. It also allows you to specify who will not receive anything from your estate, so it is critical that you provide this direction before you lose capacity or pass away.
If you disinherit a minor child, it doesn’t absolve you of the responsibility to provide for them financially until they become adults.
Texas family law specifies that ongoing child support payments survive the death of the obligor, or parent responsible for paying them. The custodial parent or legal guardians of the disinherited child could petition the probate court to continue the payments as well as claim any child support arrearages. The child would also be entitled to Social Security Survivor benefits.
Children who have reasonable grounds to believe that their disinheritance was involuntary can contest the will. Accepted grounds for challenging a will in Texas include:
A testator must understand that they are making a will and what its effects will be. They must also know their family and what property they own, and how these elements related to one another. If the parent had dementia or Alzheimer’s, their ability to understand their actions may be nonexistent.
If another party influenced or overpowered the parent’s decision-making ability at the time they signed the will, the document was involuntarily created and can be challenged.
If you are a parent seeking to disinherit a child or a child concerned that your parent did not disinherit you of their own volition, contact the estate planning and estate litigation attorneys at Romano & Sumner. We help clients make informed and voluntary decisions regarding the future distribution of their estate and protect the interests of loved ones who may have been involuntarily disinherited. For advice and representation you can trust, contact the Houston area law office of Romano & Sumner today.
Romano & Sumner, PLLC
