Q. My adult daughter, Hallie, is from a previous marriage. I have been happily married to my second husband for 15 years, and we have supplied much love and finances to keep Hallie’s family going through the years. We even placed a 2nd mortgage on our home so she and her husband would have a down-payment for theirs.
Recently I became critically ill with cancer. I was in the hospital for over a month, receiving chemo and other treatments, and she never visited me. Ever since I returned home over two months ago (still quite sick and still receiving chemo another treatments), she still hasn’t visited me once. We have always been close up until I got sick, so I just can’t understand why my daughter has not been here for me. My husband’s 2 children, who actually live further away, have both come to visit us and to help their dad take care of me, but not my own daughter.
Obviously, this lack of concern shown by my daughter has been very distressing to me, and as I am fighting this cancer and thinking more and more about the chance that I may not make it through this battle, I’m seriously thinking that I would like to change my Will to disinherit my daughter, and leave everything to my husband, even though my current Will leaves half of my house and financial assets to my daughter and half to my husband. However, I am concerned that my daughter might contest a new Will if I make one now, when I’m sick, which I know would make things a huge headache for my husband after my death.
My husband and I (and even his children, who I’m very close to) are all heartbroken about the situation, and none of them want me to disinherit my daughter, but I truly feel that she has abandoned me in my time of need and I have provided for her so well over the years, and I think my husband and his children are more deserving of my assets. I’m just not sure how to proceed. Can I completely disinherit my daughter, or do I have to leave her something under Virginia law? If I am able to and do decide to disinherit my daughter, is there any way I can ensure that she won’t contest my Will? Any other advice? I’m sure you must see the situation often in your practice.
A. I am very sorry to hear about your cancer, and about the situation with your daughter, and how it’s caused such a strain on your relationship. You would be wise to make an appointment to have your estate planning documents reviewed and changes made as appropriate due to your unfortunate circumstances. One big change is that you should probably have a living trust to distribute your assets upon your death, and not just a Will, because Wills are very easy to challenge, and Living Trusts are much harder to challenge. A Will also puts your estate through the time-consuming, complex, and costly nightmare of probate, whereas a properly-funded living trust completely avoids probate.
Although it may sound cruel to disinherit a child, many people, such as those in your situation, have valid reasons.
In many situations, parents might feel one adult child is well-off and does not need an inheritance, While perhaps another adult child is not financially successful and needs an inheritance much more. Still, a person’s circumstances can change, so be cautious when making such decisions. Fair doesn’t necessarily mean equal, but feelings can be hurt despite the fact that the person making the distribution has good intentions.
Also, sometimes there is no relationship or a strained relationship or, as in your case, a single incident and that has impacted your relationship negatively. In all cases of a strained relationship, I inquire with my clients as to whether they have taken any steps to try to repair the relationship or to understand the reasons for the rift. For example, in the situation you have described, perhaps your daughter is still the loving daughter you know, but is simply afraid of dealing with your possible upcoming death. Perhaps the reason she has not visited you is not out of a lack of love, but out of fear of losing you, and simply not being able or willing to face this fear. Keep in mind that cancer and death are scary for most people, and especially scary for children, particularly younger children.
Regardless of the above, it is your absolute right to disinherit your daughter if you so wish. But there are other options that may be preferable to outright disinheritance, especially if you are concerned about her challenging your decisions.
The 4 Myths of Estrangement
Estrangement looks different for those affected, but new research relayed by New York Times health reporter Catherine Saint Louis shows that the experience is more common and complex than we might think. Here are the four myths about estrangement that Saint Louis debunked in her article:
Myth 1. Estrangement is sudden
Estrangement is actually a “continual process.” Although it sometimes means a clean break, a fight and that’s it, it can also be a chaotic disassociation, or a relationship that’s on and off again over a period of years.
Myth 2. Estrangement is rare
Estrangement is more common than most people realize. In fact, one research study said 12 percent of parent-child relationships in the U.S. are estranged, which is likely a conservative estimate, since the study only observed mother-daughter relationships.
Myth 3. People become estranged for a clear reason
Estrangement typically falls into one of three categories, according to St. Louis’ findings: choosing between the parent and someone or something else (a partner, a passion, an identity, a lifestyle, etc.); a difference in values or perceived wrongdoing; or stressors such as domestic violence, divorce or failing health. A combination of two or more of all these factors is also possible.
Myth 4. Estrangement happens on impulse or whim
According to St. Louis, “(m)ost of the participants said that their estrangement followed childhoods in which they had already poor connections with parents who were physically or emotionally unavailable.” She believes that
estrangement is typically years in the making — resulting of unhealthy relationships that couldn’t be saved.
Virginia Disinheritance Laws
· When it comes to your children, you do have the right to disinherit them in Virginia and in most other states, but you must be explicit in doing so. If you don’t make your disinheritance explicit, there is room for confusion after you pass. Failing to do so could give a disinherited child leverage during court hearings.
- In the conversation with your attorney, be sure to explain in detail your reasons for disinheriting an adult child. No reason needs to be stated in your Will or Living Trust, but it is a good idea for you or your attorney to prepare a written statement that can be left with your estate planning documents explaining your reasons.
- There are several instances where disinheriting children in your Will can be invalidated in Virginia, such as undue influence, lack of testamentary capacity, fraud, and duress.
- Though it’s often extremely difficult to prove any of this to the court, you should be aware that there is a chance your children can prove this after you pass.
Contesting a Will
A no contest clause (also referred to in latin as an in terrorem clause) in a Will or Trust is a provision that states that if a beneficiary under the Will or Trust challenges the validity of the document (or, in some instances, tries to take certain other actions against the executor, administrator, or trustee), that person will forfeit his or her rights to take under the document.
In Virginia, if a person challenges a Will or Trust with a no contest clause and prevails in that challenge, the court will declare the Will or Trust to be invalid and of no effect (thereby eliminating the effect of the no contest clause), and a prior Will or Trust (if any) will control the disposition of the assets. if there is no prior document, then the laws of intestacy will control the disposition of the estate. So, when a person is considering challenging a Will or Trust that contains a no contest clause, he or she faces a very important choice: risk challenging the Will or Trust (and, if unsuccessful, potentially losing his or her inheritance), or not take any action and instead accept an estate plan as written.
Consider leaving your daughter something, in case she contests
If the potential challenger has a sizeable sum of money at stake, he or she will need to carefully think through the merits of the challenge. So, although you cannot do anything to completely prevent the risk of a disinherited child challenging your estate plan, it is sometimes best — depending in part on your age and health, because these things factor into a potential claim of incapacity or undue influence or duress — to leave the child you wish to disinherit enough money to serve as a disincentive for them to challenge your Will or Trust, even if you have a “no contest” clause, because a no contest clause is effectively meaningless without a bequest to go along with it that the disinherited person risks losing by filing the contest.
Estate Planning is Vitally Important for Families with Estranged Loved Ones
We see many families who have a loved one who is estranged. For those with an estranged loved one, estate planning is vitally important. We here at the Farr Law Firm have strategies in place to help all types of families plan for themselves and their loved ones (whether you are tight-knit, estranged, or other). With advance planning, each person can retain the assets it has taken a lifetime to accumulate and the peace of mind that the needs of the loved ones who he or she designates will be adequately and properly addressed. If you or members of your family have not done Incapacity Planning or Estate Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for an initial consultation:
Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301-519-8041
DC Estate Planning: 202-587-2797
About Evan H Farr, CELA, CAP
