Estrangement & Estate Planning

Regrettably, family conflicts sometimes escalate beyond mere fleeting disagreements, leading to estrangement. Family estrangement refers to physical and emotional distancing among family. This separation often reaches a point where there is minimal or even no communication between family members for an extended time. For example, a parent may avoid contact with a child who has committed criminal acts. Surprisingly, even the complete absence of contact does not necessarily diminish the legal rights of an estranged child or spouse to inherit from their family member. This is especially true when no estate plan exists expressing an intention to disinherit them.

Estranged Spouse

Without an estate plan, an estranged surviving spouse maintains a legal entitlement to inherit from the deceased spouse following the state’s intestate succession laws. Intestate succession laws serve as a framework for distributing deceased individuals’ assets and wealth. If an estranged couple had children, the children would receive a portion of the estate. However, the estranged spouse may still inherit all community property. Community property is all of the property acquired during the marriage by either spouse.

A pretermitted spouse is a legal term that describes a spouse unintentionally left out of the will. Under California Probate Code Section 21610, a surviving spouse omitted from the will may still have certain inheritance rights. Unless the will explicitly states an intention to disinherit the surviving spouse, that spouse will inherit the sum they would have received under intestacy laws, even if they are estranged.

Estranged Child

Similar to the situation of an estranged spouse, in the absence of an estate plan, a child inherits from their parent according to the state’s intestacy statute. This holds up even if they’ve had no contact with their parent for an extended period. A will must expressly state an intention to disinherit an estranged child. Furthermore, laws exist to protect children unintentionally omitted from a will, such as in the case of a child born after the death of a parent.

Addressing Estrangement In Estate Planning

Individuals who wish to prevent an estranged family member from inheriting from their estate should establish an estate plan. Their estate plan must explicitly express this intention through a will or a trust, excluding the estranged spouse or child as beneficiaries. In order to prevent legal disputes, the will could include a provision for an inheritance equivalent to what the surviving spouse would be legally entitled to receive. This share is the “statutory minimum.” Other beneficiaries can be named to acquire the other assets such as retirement accounts, property held in trusts, and life insurance. Establishing prenuptial or alternative marital agreements are strategies used to restrict the spouse’s entitlement to inheritance.

When an individual intends to exclude a child from their inheritance, their will must convey this intention explicitly. To minimize the likelihood of a contested will, the parent might include a nominal inheritance for the estranged child. Moreover, a parent can transfer their wealth into a trust and not name the estranged child as a beneficiary.

We Can Help

A key objective in estate planning is to ensure the realization of your wishes. If you wish to exclude estranged family from inheriting your assets, it’s vital that your estate plan articulates this. We are here to assist you in devising a comprehensive estate plan that aligns with your goals and minimizes potential family discord. Please don’t hesitate to contact us today to schedule a complimentary consultation.