FAMILY FRICTION?

INTENTIONAL OMISSION CONSIDERATIONS

March 27, 2024

The unfortunate reality is that many families do not live to see that Disney-esque “happily ever after” setting with families enjoying each other’s company as a wholly cohesive, integrated, and tightknit unit. Sometimes when planning how to divide an estate, the creator of a Will may need to consider the challenging and emotional question of whether to intentionally omit an individual from an estate plan. While a person creating a Will can intentionally omit anyone (other than a spouse, depending on the law and circumstances), this newsletter will focus on the intentional omission of a child.

Intentional omission of a child is permitted by New Jersey (N.J.S.A. § 3B:5-16) and New York (E.P.T.L. § 5-3.2). While many cases of intentional omission could be retributive in nature, other cases of intentional omission are just financially practical, such as parents who do not trust their child to maturely handle money or where a fair distribution under the circumstances is simply not equal. Other common reasons for intentional omissions are a child who may suffer from severe substance abuse, parents may disapprove of their child’s lifestyle decisions, or their relationship with their child may be estranged.

Another reason why parents disinherit children is because the parents may have already provided certain children with sufficient support during life or advancement of intended inheritance, whether in one large amount (e.g., down payment for a house) or throughout their children’s lives (college, graduate school, and a down payment for a house). Perhaps the parents have few assets and want to provide primarily or entirely for their children who are in greater financial need than their children who are more financially successful.

Regardless of the reason, there is a chance that a disinherited child may challenge the parent’s unfavorable Will. The disinherited child may claim there was “undue influence,” in that the parent was mentally frail and coerced by another family member to disinherit the child. The disinherited child may try to argue that the parent did not have mental capacity to execute the Will. Maybe they will assert that the parent simply forgot to provide for them, or they were left out due to a scrivener’s error.

In order to help withstand a challenge, it is important to acknowledge your intention as it relates to any omission in your Will. It is also important to be cognizant of the following factors that are a sampling of what a court may analyze should your intentional omission clause be challenged:

• Whether the intentional omission clause is clearly stated in the Will;
• Circumstances throughout the preparation and execution of the Will;
• Size of the parent’s estate, and the type of property in the parent’s estate;
• The parent’s mental state and lifestyle;
• The parent’s relationships with his or her named beneficiaries;
• Declarations and statements the parent has made regarding his or her children, including the omitted child;
• The parent’s relationship with the omitted child;
• Family life dynamic;
• Recent contacts between the parent and the omitted child;
• Any advancements of inheritance or large gifts given to the omitted child outside the Will; and
• The omitted child’s, and other children’s, respective financial situations

To avoid these sorts of challenges, some parents may provide a child with a small amount of inheritance, while others may create trusts to protect their assets and avoid the probate process where challenges could arise. No matter how you decide to divide your estate, your intentions should be thoughtful and clear.

Whether to omit a child is a difficult and emotional decision. If you would like legal assistance to ensure your wishes are met, our Trusts & Estates attorneys at Pashman Stein Walder Hayden P.C. are available to assist you with such needs.

Learn more about our Trust & Estates and Elder Law & Special Needs Planning Practices.

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The information contained herein is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to these materials do not create an attorney-client relationship between Pashman Stein Walder Hayden P.C. and/or its attorneys, and the reader of the materials.