Page 34 - Southern Exposure - January '24

Page 34, Southern Exposure

EldEr EstatE Planning

Limited Impact Of Estrangement On Estate Planning

Submitted by Anné Desormier-Cartwright, Esq.

Unfortunately, rifts The estranged child may also inherit under some a disappointed child, the parent could also consider including
sometimes arise between circumstances if their deceased parent created a will that a small inheritance for the estranged child and, if no-contest
family members that are does not provide for them. Similar to the laws designed to clauses are enforceable under their state law, a no-contest
much more serious than just protect surviving spouses who were unintentionally omitted clause providing that the child will lose the inheritance if
temporary squabbles. The from a will, many states have laws providing that if a child they unsuccessfully contest the will. If the parent transfers
result may be estrangement, is unintentionally omitted from a will – for example, if the their money and property to a trust, the child can simply not
defined as “the state of being child was born after the will was created and the will was not be named as a beneficiary of the trust.
alienated or separated in updated to include them – the child should inherit the amount Take Steps To Memorialize The State Of The Relationship
feeling or affection; a state of they would have received under the intestacy statute if the For estranged spouses, doing what is required to legally
hostility or unfriendliness” parent had died without a will. This protection will not apply end the relationship is another way to avoid unintended
or “the state of being if the parent’s will expressly disinherits the child. However, results when one of the spouses dies. After divorce, the
separated or removed.” under this type of statute, if the will does not expressly state surviving former spouse is not entitled to inherit any amount
1
Estrangement does not mean that the relationship has come an intention to disinherit the estranged child, they may be from the deceased former spouse unless there is a property
to an end legally, however. able to inherit in specified circumstances even if their parent’s settlement agreement providing otherwise. Depending
A husband may move out of the home he shared with will does not provide for them. on state law, even if the surviving former spouse is still a
his wife and have limited or no contact with her or their Ways To Address Estrangement In Your Estate Plan beneficiary in the deceased former spouse’s will, they may
children. A child who has been abused may live with a Those who do not want an estranged family member to not be entitled to inherit pursuant to the will unless there is
relative and avoid contact with their parent. A parent may inherit from them should create an estate plan that includes additional documentation showing that the deceased former
choose not to associate with a child who has committed a will expressly stating that intention or a trust that does not spouse intended that result. As mentioned above, the effect
crimes or abused their trust. These types of situations are include the estranged spouse or child as a beneficiary. As of legal separation varies depending on state law: In some
unfortunate and occur more often than we would like. You mentioned, a spouse can inherit the amount allowed under states, legal separation has no impact on a spouse’s right to
may be surprised to learn that limited contact, or even the the elective share statute regardless of the terms of the inherit under the intestacy or elective share statute.
absence of any contact, will not have a major impact on the deceased spouse’s will. To avoid litigation by the estranged We Can Help
legal right of an estranged spouse or child to inherit from spouse, the will could provide for an inheritance in the One of the important goals of estate planning is to ensure
their family member, especially if there is no estate plan amount the surviving spouse would be entitled to receive as that your wishes are carried out. If you want to prevent an
expressing an intention to disinherit them. their elective share or the “statutory minimum.” In states in estranged family member from inheriting from you, your estate
Estranged Spouse which the surviving spouse’s elective share is limited to the plan needs to expressly state that intention. We can help you
Intestate succession statutes. If the deceased spouse did probate estate, beneficiaries other than the estranged spouse think through how to best accomplish your estate planning
not have an estate plan in place, the surviving spouse is legally can be named to receive assets such as retirement accounts, goals while also minimizing any further strife in your family.
entitled to inherit from the deceased spouse as set forth in money and property held in trusts, and life insurance policies. Give us a call today to set up an appointment. You can reach
their state’s intestate succession law even if the spouses Other strategies, such as lifetime gifts and prenuptial or other us at (561) 694-7827. Elder & Estate Planning Attorneys PA,
are estranged – and in many states, even if they are legally marital agreements may also be used to limit or waive the 480 Maplewood Drive, Suite 3, Jupiter, FL 33458.
separated. Intestate succession laws provide a default estate spouse’s right to inherit an elective share.
plan representing the state’s view of the fairest distribution When someone wants to disinherit a child, their will 1 Estrangement, Dictionary.com, https://www.dictionary.
of a deceased person’s money and property. In many states, if should clearly state that intention. To avoid a will contest by com/browse/estrangement (last visited Aug. 29, 2023).
the estranged couple did not have any children, the surviving
spouse will likely inherit the entire estate of the deceased
spouse – even if they despised each other and had not seen
each other for many years. If there were children from the
union, the surviving spouse and children may each receive
a portion of the estate as set forth in the intestate succession
statute; in community property states, even if the couple had
children, the spouse may inherit all community property,
although any separate property may be divided between the
surviving spouse and the children.
Pretermitted spouse statutes. Some states have another
type of statute that is intended to protect a spouse who is
unintentionally omitted from a will, for example, if the will
was created prior to the marriage and was never amended
to provide for the spouse. These laws typically provide
that unless the will expresses an intention to disinherit
the surviving spouse, the spouse will inherit the amount
they would have received under the intestacy statute if the
spouse had died without a will. Therefore, depending on
the circumstances, even if an estranged spouse’s deceased
spouse had a will that did not provide for them, the estranged
spouse may be entitled to inherit some or all of the deceased
spouse’s property if there is no express statement in the will
of the deceased spouse’s intention to disinherit them.
Elective share statutes. Even if the deceased spouse
created a will that expressly indicates an intention to
completely or partially disinherit their spouse, the state’s
elective share statute typically protects the surviving spouse
to some degree. This type of statute allows a spouse to elect
to inherit a certain percentage – often ranging from 30 to
50 percent – of their deceased spouse’s estate regardless
of what the deceased spouse’s will says. In some states,
the surviving spouse is only allowed to take their elective
share from the probate estate, which excludes money and
property that have been transferred to a trust, insurance
policies, and retirement or financial accounts that name
other beneficiaries. Other states have laws that include
both the probate estate and other accounts or property
the deceased spouse owned; these laws provide that the
surviving spouse’s elective share can be calculated based Licensed and Insured
on a larger pool of assets called the augmented estate.
As a result of the intestacy and elective share laws, an
estranged spouse is likely to be protected from complete
disinheritance in the absence of other planning.
Estranged Child
As with an estranged spouse, if no estate plan is in place,
a child will be able to inherit from their parent under the
state intestacy statute, even if they have had no contact with
their parent for many years.