When Families are Estranged: What is the Impact on Estate Planning?

Unfortunately, rifts sometimes arise between family members that are much more serious than just temporary squabbles. The result may be estrangement, defined as “the state of being alienated or separated in feeling or affection; a state of hostility or unfriendliness” or “the state of being separated or removed.”^[1] Being estranged does not mean that the relationship has come to an end legally, however.

A husband may move out of the home he shared with his wife and have limited or no contact with her or their children. A child who has been abused may live with a relative and avoid contact with their parent. A parent may choose not to associate with a child who has committed crimes or abused their trust. These types of situations are unfortunate and occur more often than we would like. You may be surprised to learn that limited contact, or even the absence of any contact, will not have a major impact on the legal right of an estranged spouse or child to inherit from their family member, especially if there is no estate plan that provides for a plan to disinherit them.

Estranged Spouse

Intestate succession statutes. If the deceased spouse did not have an estate plan in place, the surviving spouse is legally entitled to inherit from the deceased spouse as set forth in their state’s intestate succession law even if the spouses are estranged—and in many states, even if they are legally separated. Intestate succession laws provide a default estate plan representing the state’s view of the fairest distribution of a deceased person’s money and property. In many states, if the estranged couple did not have any children, the surviving spouse will likely inherit the entire estate of the deceased spouse—even if they despised each other and had not seen each other for many years. If there were children from the union, the surviving spouse and children may each receive a portion of the estate as set forth in the intestate succession statute; in community property states, even if the couple had children, the spouse may inherit all community property, although any separate property may be divided between the surviving spouse and the children.

Pretermitted spouse statutes. Some states have another type of statute that is intended to protect a spouse who is unintentionally omitted from a will, for example, if the will was created prior to the marriage and was never amended to provide for the spouse. These laws typically provide that unless the will expresses an intention to disinherit the surviving spouse, the spouse will inherit the amount they would have received under the intestacy statute if the spouse had died without a will. Therefore, depending on the circumstances, even if an estranged spouse’s deceased spouse had a will that did not provide for them, the estranged spouse may be entitled to inherit some or all of the deceased spouse’s property if there is no express statement in the will of the deceased spouse’s intention to disinherit them.

Elective share statutes. Even if the deceased spouse created a will that expressly indicates an intention to completely or partially disinherit their spouse, the state’s elective share statute typically protects the surviving spouse to some degree. This type of statute allows a spouse to elect to inherit a certain percentage—often ranging from thirty to fifty percent—of their deceased spouse’s estate regardless of what the deceased spouse’s will says. In some states, the surviving spouse is allowed to take only their elective share from the probate estate, which excludes money and property that have been transferred to a trust, insurance policies, and retirement or financial accounts that name other beneficiaries. Other states, such as Florida, have laws that include both the probate estate and other accounts or property the deceased spouse owned; these laws provide that the surviving spouse’s elective share can be calculated based on a larger pool of assets called the augmented estate.

As a result of the intestacy and elective share laws, an estranged spouse is likely to be protected from complete disinheritance in the absence of other planning.

Estranged Child

As with an estranged spouse, if no estate plan is in place, a child will be able to inherit from their parent under the state intestacy statute, even if they have had no contact with their parent for many years.

The estranged child may also inherit under some circumstances if their deceased parent created a will that does not provide for them. Similar to the laws designed to protect surviving spouses who were unintentionally omitted from a will, many states have laws providing that if a child is unintentionally omitted from a will—for example, if the child was born after the will was created and the will was not updated to include them—the child should inherit the amount they would have received under the intestacy statute if the parent had died without a will. This protection will not apply if the parent’s will expressly disinherits the child. However, under this type of statute, if the will does not expressly state an intention to disinherit the estranged child, they may be able to inherit in specified circumstances even if their parent’s will does not provide for them.

Ways to Address Estrangement In Your Estate Plan

Those who do not want an estranged family member to inherit from them should create an estate plan that includes a will expressly stating that intention or that includes a trust that does not include the estranged spouse or child as a beneficiary. As mentioned, a spouse can inherit the amount allowed under an elective share statute in some states regardless of the terms of the deceased spouse’s will. To avoid litigation by the estranged spouse, the will could provide for an inheritance in the amount the surviving spouse would be entitled to receive as their elective share or the “statutory minimum.” In states in which the surviving spouse’s elective share is limited to the probate estate, beneficiaries other than the estranged spouse can be named to receive assets such as retirement accounts, money and property held in trusts, and life insurance policies. Other strategies, such as lifetime gifts and prenuptial or other marital agreements may also be used to limit or waive the spouse’s right to inherit an elective share.

When someone wants to disinherit a child, their will should clearly state that intention. To avoid a will contest by a disappointed child, the parent could also consider including a small inheritance for the estranged child and, if no-contest clauses are enforceable under their state law, a no-contest clause providing that the child will lose the inheritance if they unsuccessfully contest the will. If the parent transfers their money and property to a trust, the child can simply not be named as a beneficiary of the trust.

Take Steps to Memorialize the State of the Relationship

For estranged spouses, doing what is required to legally end the relationship is another way to avoid unintended results when one of the spouses dies. After divorce, the surviving former spouse is not entitled to inherit any amount from the deceased former spouse unless there is a property settlement agreement providing otherwise. Depending on state law, even if the surviving former spouse is still a beneficiary in the deceased former spouse’s will, they may not be entitled to inherit pursuant to the will unless there is additional documentation showing that the deceased former spouse intended that result. As mentioned above, the effect of legal separation varies depending on state law: in some states, legal separation has no impact on a spouse’s right to inherit under the intestacy or elective share statute.

We Can Help

One of the important goals of estate planning is to ensure that your wishes are carried out. If you want to prevent an estranged family member from inheriting from you, your estate plan needs to expressly state that intention. We can help you think through how to best accomplish your estate planning goals while also minimizing any further strife in your family. Give us a call today to set up an appointment.

^[1] Estrangement, Dictionary.com, https://www.dictionary.com/browse/estrangement (last visited Sept. 5, 2023)