There are many reasons why someone would want to disinherit their child in his or her will. Perhaps the parent disapproved of a life choice of the child such as marrying the wrong person or entering the wrong profession. Perhaps the child committed an unforgivable act such as stealing money from the parent or harming another family member. It is even possible that there is no relationship rift whatsoever, but that child had received a substantial gift in lieu of an inheritance during the parent’s lifetime and he or she was disinherited out of fairness to the other beneficiaries. Whatever the reason (which, by the way, does not have to be stated by the testator), anyone can disinherit their child in Michigan in a last will and testament or a revocable trust. However, the testator must follow the correct legal procedures to carry out this wish or else that provision may be defeated in probate court.
If the testator wishes to disinherit a child, then the estate planning document must include language that knowingly, intentionally and deliberately leaves no provision for the child to be excluded. It is advisable to work with an experienced estate planning attorney to ensure that the appropriate wording is included to wield legal force. It is not good enough to simply exclude the child’s name from the will for the following reasons:
I. INADVERTEDLY OMITTED CHILD BORN AFTER EXECUTION OF WILL
Sometimes, an additional child is born to a testator after a will is executed, and the testator neglects to amend the will to include that child even if it was not his or her intent to disinherit. Under those circumstances, Michigan’s Estate and Protected Individuals Code provides a process that allows that omitted child to inherit even when the will inadvertedly leaves him or her out.
According to MCL 700.2302(1), “if a testator fails to provide in his or her will for a child of the testator born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as provided in 1 of the following:”
- “(a) If the testator had no child living when he or she executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.”
- “(b) If the testator had 1 or more children living when he or she executed the will, and the will devised property or an interest in property to 1 or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator’s estate subject to all of the following:”
- “(i) The portion of the testator’s estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator’s then-living children under the will.”
- “(ii) The omitted after-born or after-adopted child is entitled to receive the share of the testator’s estate, as limited in subparagraph (i), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.”
- “(iii) To the extent feasible, the interest granted an omitted after-born or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator’s then-living children under the will.”
- “(iv) In satisfying a share provided by this subdivision, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.”
However, according to MCL 700.2302(2), an omitted child CANNOT inherit if EITHER of the following are true:
- “(a) It appears from the will that the omission was intentional”, OR
- “(b) The testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be a substitute for a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.”
In addition, “[i]f at the time of execution of the will the testator fails to provide in his or her will for a living child solely because he or she believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.” MCL 700.2302(3).
II. ASSUMING CHILD IS NOT AN HEIR
A testator may assume that a child who is the product of an extramarital affair cannot inherit from that parent because he or she is considered “illegitimate”. As a result, the love child may not even receive a mention in the will. However, illegitimacy is not an automatic bar to inheritance. If a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the child’s natural father for purposes of intestate succession if ANY of the following occur:
- The man joins with the child’s mother and acknowledges that child as his child by completing an acknowledgment of parentage as prescribed in the acknowledgment of parentage act. MCL 700.2114(1)(b)(i).
- The man joins the mother in a written request for a correction of certificate of birth pertaining to the child that results in issuance of a substituted certificate recording the child’s birth. MCL 700.2114(1)(b)(ii).
- The man and child have established a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either. MCL 700.2114(1)(b)(iii).
- The man is determined to be the child’s father and an order of filiation establishing that paternity is entered as provided in the paternity act. MCL 700.2114(1)(b)(iv).
- Regardless of the child’s age or whether or not the alleged father has died, the court with jurisdiction over probate proceedings relating to the decedent’s estate determines that the man is the child’s father, using the standards and procedures established under the paternity act. MCL 700.2114(1)(b)(v).
- The man is determined to be the father in an action under the revocation of paternity act. MCL 700.2114(1)(b)(Vi).
If a parent-child relationship is established by any of these methods (no matter what the circumstances of conception), then the child will acquire the legal right to inherit from that parent.
III. EXCLUDED CHILD MAY INHERIT EXEMPT PROPERTY
Under MCL 700.2404, “[t]he surviving spouse (or, if no spouse, the children of the decedent in equal shares) are “entitled to household furniture, automobiles, furnishings, appliances, and personal effects from the estate up to a value not to exceed $10,000.00 (adjusted to $15,000.00 in 2018) more than the amount of any security interests to which the property is subject.” If there is insufficient exempt property, the spouse or children are entitled to take any other assets of the estate necessary to make up the $10,000.00 value (adjusted to $15,000.00 in 2018). The definition of “children” entitled to receive exempt property includes all the adult children of the decedent, not just minor and dependent children.
The Michigan Court of Appeals decided In re Estate of Jajuga, 312 Mich App 706; 881 NW2d 487 (2015) and determined that, although a child was fully and explicitly disinherited in the decedent’s will, he or she was still entitled to claim exempt property from the estate due to the existing statutory language at that time. In response, the Michigan Legislature amended MCL 700.2404, effective August 8th, 2018, and added the following language: “The decedent may exclude 1 or more of the decedent’s children from receiving exempt property or assets to make up a deficiency of exempt property … by either of the following means:”
- “The decedent by will expressly states that “[t]he child takes nothing” OR “[t]he child takes an amount of $10.00 or less from the estate.”
- “The decedent by will expressly states that the child is not to receive exempt property under this section.”
Absent the required statutory language, a “disinherited” child may still have a right to take property from the parent’s estate even if not entitled to any bequests or residue through the last will and testament.
Michigan law provides several legal mechanisms to prevent a spouse from being disinherited. However, a parent is free to exclude any child from a testamentary provision for any reason or no reason whatsoever. The trick is that the exclusion must be done correctly, or else the disinherited child may take from the estate against the testator’s wishes. It is imperative to work with a skilled estate planning lawyer to make sure that the right tools are used to carry out all the desired wishes. If you have any questions or are in need of estate planning, then do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC today.