Inheritances don’t always carry the same financial weight. Although you may have compelling reasons to leave an unequal inheritance, children—even those with families of their own—can’t always understand why they’ve been excluded from a parent’s estate plan or have been left with less than what other siblings received. Even if you offer an explanation in the form of an addendum or codicil, a disinherited heir’s anger could leave the rest of your family fighting for their rights in a New York surrogate’s court.
You don’t have to take chances with your estate plan. The Landskind & Ricaforte Law Group, P.C. has spent years helping families in Brooklyn and across New York City establish long-lasting legacies. Here, our experienced estate planning lawyers discuss the rewards and risks of leaving an unequal inheritance.
3 Reasons for Unequal Inheritance Planning
For many families, splitting assets evenly among beneficiaries seems the easiest way to avert conflict during probate. However, parents and children often have very different needs and priorities. Sometimes, leaving an unequal inheritance makes more sense than trying to make everyone equally happy. Here are some reasons why:
- You have decided to disinherit a child due to a personal disagreement; their pattern of financial irresponsibility and/or drug addiction; or their debilitating mental illness.
- You wish to reward a child who went the extra mile as a caregiver.
- You believe one of your children needs more help than another.
Although most parents have very good reasons for leaving an unequal inheritance, children can’t always understand the logic that goes into these sorts of decisions. Without a clear-cut plan, your estate could be exposed to a wide range of unexpected risks.
The Risks of Leaving an Unequal Inheritance
Any inheritance not split evenly between your children could be considered unequal. However, whereas small differences are unlikely to prompt a lawsuit, larger discrepancies often cause conflict among heirs. Instead of accepting your decision, a disgruntled child could try taking action against your estate.
Estate lawsuits and probate contests come in many forms. Depending on the circumstances of your death, your family characteristics, and the exact language used in your estate plan, a disinherited child could try telling the court that:
- Your last will and testament wasn’t executed in accordance with state law.
- Your estate plan is invalid because you were suffering from cognitive decline or otherwise of unsound mind.
- You simply made a mistake by forgetting to list your child as a beneficiary.
Although some of these scenarios could seem far-fetched, New York has strong legal provisions that prevent heirs from being inadvertently disinherited. If used in bad faith, these provisions could upend even the best-laid estate plans.
New York’s Pretermitted Child Statute
In New York, a child who was born after the execution of your last valid will could be considered a “pretermitted child.” Under NY Est. Pow. & Trusts L. § 5-3.2, a pretermitted child is defined as any child who:
- Was born after your last valid will and testament was executed or amended
- Is not provided for by your last will and testament
- Will not receive a substantive inheritance from a trust, insurance policy, or other estate planning instrument
As a general rule, state courts will presume that any child who meets these criteria was unintentionally excluded from your will. In other words, if an heir successfully argues that they were pretermitted, they could still be entitled to a sizeable portion of your estate—even if everyone in your family knows you had made a practical disinheritance decision.
How the Landskind & Ricaforte Law Group, P.C. Could Help Protect Your Legacy
You don’t have to accept uncertainty in the place of action. The Landskind & Ricaforte Law Group, P.C. has spent years helping New York City families protect their legacies. If you plan to leave an unequal inheritance to your children, our experienced team of estate planning lawyers could help you prevent conflict during probate and succession. Depending on your unique needs, we could help with the following:
Revise Your Last Will and Testament
So long as your will includes clear and unambiguous language explaining that you have intentionally excluded a child from your will, they will not be able to claw back their inheritance rights under the pretermitted child statute.
Although you can use tools like codicils to amend estate provisions without rewriting your entire plan, those amendments can be problematic. Aside from providing a disgruntled heir with yet another document to challenge, codicils only work when they don’t conflict with the other terms of your last will and testament.
In general, it’s best to rewrite your will to accommodate disinheritance decisions.
Explore Alternate Inheritance Options
You don’t have to disinherit your child outright to leave an unequal inheritance. Instead, you may be able to consider the following:
- Establishing a special needs or spendthrift trust to protect a child who is incapable of managing money without assistance
- Purchasing a new life insurance policy, or altering an existing one, to ensure that your child receives enough of an inheritance to dissuade them from going to court
- Leaving items of sentimental value
Establish a Living Trust
A living trust is a legal arrangement that lets you, the “grantor,” transfer assets to the care of a trust and a designated successor trustee. During your lifetime, you will retain the right to access your trust assets and use them as you see fit. After your death, your successor trustee must manage the trust’s assets in accordance with the trust charter.
Trusts provide several significant advantages over wills and testaments. These include, but are not limited to, the following:
- A revocable living trust can be amended without penalty or restriction.
- Trusts can be used to provide regular and recurring disbursements to a child who isn’t responsible enough to handle a lump-sum inheritance.
- Properly configured living trusts can provide an additional layer of protection against creditor claims and estate taxation.
Additionally, since trusts and trust-controlled assets are not subject to probate, your named beneficiaries cannot typically challenge its provisions unless they have compelling concerns about the trust’s management.