‘Tis the Season

By Bernard A. Krooks, 

Certified Elder Law Attorney  


I find it quite interesting how many articles I have read about how to get along with family members during the holidays. One article even suggested what to say, or what not to say, if someone at the Thanksgiving dinner table says something that upsets you or that you find offensive. While it may not be a news flash that family members sometimes do not see things the same way, it does seem like family relationships are now more strained than ever. In fact, in our law practice, we are seeing an increasing number of families that are not getting along or where one or more relationships are problematic. In fact, it has been reported that a shift in American family values is at least, in part, responsible for growing levels of estrangement between parents and adult children. While it is not uncommon for those who live in the same household or are part of the same family, to have different views; sometimes, the differences are so great that they are causing clients to consider disinheriting a child or other family member because of it. Before you proceed with this drastic step, please keep in mind that there may be a better way to accomplish your goals that does not involve disinheriting your child completely. 


In our experience, families are generally fairly tolerant of varying views, whether they are political or otherwise. However, in recent years it seems as though things have gotten far more fractured. Typically, parents and children just agree to disagree, and the vast majority of parents leave their property equally to their kids, regardless of differing viewpoints. But some parents might be genuinely concerned about the use of the inherited funds if they leave property to a child with extreme views (in their mind). The assets they have worked hard for may end up funding purposes to which they are opposed. 


While almost every state in the U.S. has some protections for spouses, children are generally not given the same heirship rights. In all states except Louisiana (in certain circumstances), children have no inheritance rights. In New York, while you are not required to mention the child you are disinheriting, it may be a good idea to do so to make it clear that the child has been intentionally omitted and that it was not an oversight. You may also consider leaving a reduced amount to this child and stating that if he or she challenges the will that their share will be reduced to nothing. If done properly, these types of “no contest” clauses can be very effective in making sure that your wishes are carried out after you pass away. 


So, now that we know you can disinherit a child if you want to, the question becomes:  should you? When clients indicate that they are considering drastic action like disinheriting a child, we often try to dig deeper and ask why they want to do this to get a better understanding. For example, the parents may have been estranged from the child for many years or the child may be abusive towards the parents, or some other reason that might arguably justify a disinheritance. Other times, however, the relationship between parents and children is fine but parents have a concern about how the inheritance might be spent when they are no longer around. The concerns could emanate from a child’s bad marriage, poor spending habits, or perhaps divergent political views. The parents think their children have gone too far and do not know what to do and the knee-jerk reaction might be to disinherit the child. Sometimes they consider leaving the child’s inheritance to a sibling with instructions that the sibling do the “right thing” if the rogue child comes around. The third, and often better option, is to leave the child’s inheritance to a trust. 


Leaving an inheritance in trust has several benefits, one of which is the ability to create a plan that is specifically tailored to your needs and the needs of your children. The trust can specify what funds should be used for and when. Parents can add as many specifics as desired. The trust could even provide that if things improve over time, the child could receive the entire balance. Or that, if the child remains extreme, no money is ever disbursed to the child. Someone other than the child should be the trustee and make decisions regarding investments and distributions. Often clients choose other family members, but a family friend or professional (such as a bank or trust company) might also be viable options. 


As you can see, a trust might be just what is needed if you and your children don’t see certain things the same way and you are concerned about how your money will be spent when you are gone.   With a trust, you do not have to disinherit your child and you can control how the funds are spent after your death.


Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is a past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.