Page 19 - The Jewish Voice - January '24

The Jewish Voice, Page 19

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Limited Impact of Estrangement each receive a portion of the estate as set forth in the intestate if their deceased parent created a will that does not provide for
The estranged child may also inherit under some circumstances
succession statute; in community property states, even if the
on Estate Planning couple had children, the spouse may inherit all community them. Similar to the laws designed to protect surviving spouses
property, although any separate property may be divided between who were unintentionally omitted from a will, many states have
By Anné Desormier- the surviving spouse and the children. laws providing that if a child is unintentionally omitted from
Cartwright, ESQ. • Pretermitted spouse statutes: Some states have another a will — for example, if the child was born after the will was
Unfortunately, rifts type of statute that is intended to protect a spouse who is created and the will was not updated to include them — the
sometimes arise between unintentionally omitted from a will; for example, if the will was child should inherit the amount they would have received under
family members that are created prior to the marriage and was never amended to provide the intestacy statute if the parent had died without a will. This
much more serious than just for the spouse. These laws typically provide that unless the will protection will not apply if the parent’s will expressly disinherits
temporary squabbles. The expresses an intention to disinherit the surviving spouse, the the child. However, under this type of statute, if the will does not
result may be estrangement, spouse will inherit the amount they would have received under the expressly state an intention to disinherit the estranged child, they
defined as “the state of being intestacy statute if the spouse had died without a will. Therefore, may be able to inherit in specified circumstances even if their
alienated or separated in depending on the circumstances, even if an estranged spouse’s parent’s will does not provide for them.
feeling or affection; a state of deceased spouse had a will that did not provide for them, the Ways to Address Estrangement in Your Estate Plan
hostility or unfriendliness” or estranged spouse may be entitled to inherit some or all of the Those who do not want an estranged family member to
“the state of being separated or removed.” Estrangement does not deceased spouse’s property if there is no express statement in inherit from them should create an estate plan that includes a will
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mean that the relationship has come to an end legally, however. the will of the deceased spouse’s intention to disinherit them. expressly stating that intention or a trust that does not include
A husband may move out of the home he shared with his wife • Elective share statutes: Even if the deceased spouse created a the estranged spouse or child as a beneficiary. As mentioned, a
and have limited or no contact with her or their children. A child will that expressly indicates an intention to completely or partially spouse can inherit the amount allowed under the elective share
who has been abused may live with a relative and avoid contact disinherit their spouse, the state’s elective share statute typically statute regardless of the terms of the deceased spouse’s will. To
with their parent. A parent may choose not to associate with a protects the surviving spouse to some degree. This type of statute avoid litigation by the estranged spouse, the will could provide
child who has committed crimes or abused their trust. These types allows a spouse to elect to inherit a certain percentage — often for an inheritance in the amount the surviving spouse would
of situations are unfortunate and occur more often than we would ranging from thirty to fifty percent — of their deceased spouse’s be entitled to receive as their elective share or the “statutory
like. You may be surprised to learn that limited contact, or even estate regardless of what the deceased spouse’s will says. In minimum.” In states in which the surviving spouse’s elective
the absence of any contact, will not have a major impact on the some states, the surviving spouse is only allowed to take their share is limited to the probate estate, beneficiaries other than
legal right of an estranged spouse or child to inherit from their elective share from the probate estate, which excludes money and the estranged spouse can be named to receive assets such as
family member, especially if there is no estate plan expressing property that have been transferred to a trust, insurance policies, retirement accounts, money and property held in trusts, and life
an intention to disinherit them. and retirement or financial accounts that name other beneficiaries. insurance policies. Other strategies, such as lifetime gifts and
Estranged Spouse Other states have laws that include both the probate estate and prenuptial or other marital agreements, may also be used to limit
• Intestate succession statutes: If the deceased spouse did other accounts or property the deceased spouse owned; these or waive the spouse’s right to inherit an elective share.
not have an estate plan in place, the surviving spouse is legally laws provide that the surviving spouse’s elective share can be When someone wants to disinherit a child, their will
entitled to inherit from the deceased spouse as set forth in their calculated based on a larger pool of assets called the augmented should clearly state that intention. To avoid a will contest by
state’s intestate succession law even if the spouses are estranged estate. a disappointed child, the parent could also consider including
— and in many states, even if they are legally separated. Intestate As a result of the intestacy and elective share laws, an a small inheritance for the estranged child and, if no-contest
succession laws provide a default estate plan representing the estranged spouse is likely to be protected from complete clauses are enforceable under their state law, a no-contest
state’s view of the fairest distribution of a deceased person’s disinheritance in the absence of other planning. clause providing that the child will lose the inheritance if they
money and property. In many states, if the estranged couple did Estranged Child unsuccessfully contest the will. If the parent transfers their money
not have any children, the surviving spouse will likely inherit the As with an estranged spouse, if no estate plan is in place, and property to a trust, the child can simply not be named as a
entire estate of the deceased spouse — even if they despised each a child will be able to inherit from their parent under the state beneficiary of the trust.
other and had not seen each other for many years. If there were intestacy statute, even if they have had no contact with their parent
children from the union, the surviving spouse and children may for many years. Lifestyles on page 20