Friday, December 28, 2012

. . . AND TO MY SON JOHNNY, I LEAVE ABSOLUTELY NOTHING: Disinheritance & No-Contest Clauses

           In 1968, +Henry Fonda and +Lucille Ball starred in a brilliant movie, +“Yours, Mine & Ours” produced by +Desilu Productions.  The film was based upon the true story of Frank and +Helen Beardsley, a widower with 10 children and a widow with 8, and their life challenges as they met, married, and blended their families together.  Plus, they had 2 more children together following their marriage!  Since reality television didn’t exist in the 1960’s to follow this family around and hover over their every move as the years passed, we never learned much about the later years of the Beardsley family.  We do know that Helen passed away in 2000, and that Frank remarried again.  Chances are that with the film success, a 2005 remake of the film, and Mrs. Beardsley’s autobiography, +“Who Gets the Drumstick?”, there may very well have been an estate to distribute when Helen passed away. 

Fast forward to today.  Many of my clients have blended families comprised of their current husband or wife and also children from a prior marriage for one or both of them.  In many instances, for one reason or another, these parents have decided that not all of the children will inherit property from them.  And some of those disinherited children may not be too pleased about that.  What makes it worse is that many of those “children” aren’t doing so well financially in their own lives, so they would jump at the chance of receiving money – even from a deceased parent they hadn’t spoken to in over 30 years.  The biggest concern for the surviving spouse or the other children who are inheriting the estate is what in the world are they going to do when the disinherited ones show up on the doorstep demanding what they believe is “rightfully theirs” when, in fact, it was their parent’s decision that they were not to receive anything.

At the core of this situation is the concept of “disinheriting” someone.  Texas law imposes a few very important and mandatory requirements that must be followed in order to disinherit a spouse, a child, or other descendant.  If you don’t follow those requirements, the relative will be allowed to inherit anyway, which altogether defeats your desire to disinherit them.   First, you must prepare a will or place your property in trust.  If you don’t, under State law if you die without a will, your spouse is still alive, and you have children from a prior marriage, your children essentially take 2/3 of everything except Community Property, where they take your ½ share.  Here’s how State law divides the estate: 

Real Property (real estate) that is your Separate Property (not Community Property):
-          1/3 to your spouse for the rest of his/her life (a “life estate”), then that 1/3 passes on to your children in full ownership; and,
-          The remaining 2/3 ownership to your children, outright. 
Personal Property that is your Separate Property (like bank accounts, investment accounts, collections, jewelry, etc.):
-              1/3 to surviving spouse;  and,
-              2/3 to children and their descendants
Community Property:
-          ½ to the Spouse – that’s just the one-half that belonged to the spouse already!
-          Remaining ½ to the children.

So if you want to disinherit any children, you must create a will or trust in order to do so.  You must also specifically list by name the persons you are disinheriting, and specifically stating that you intend to disinherit them and leave them nothing.  Otherwise, the law calls them a “pretermitted” heir and they get to take a share of your estate anyway, as though you just accidentally forgot them!   I do suggest that if the only reason you are not leaving assets to a child or descendent is because they have already accumulated significant wealth from another source and simply don’t need the money, you may want to consider saying something like, “while I leave them all of my love and affection, they are financially sound and therefore I elect to leave no property to them.“  At least you have explained yourself and they don’t wonder why they were excluded.

                I also recommend one additional provision to try to dissuade the disinherited ones from waging war upon the survivors:  A no-contest clause.  This provision essentially says that anyone who tries to challenge the will or trust is disinherited.  Even so, be aware that there’s no guarantee that a disinherited child won’t come knocking anyway, either at your doorstep or at the courthouse steps, trying to get the will thrown out, saying that you were “incompetent” or “forced” to sign that document.  But that writing is at least one more indication of your personal intent, and the burden is on the disinherited one to prove otherwise. 

                So that’s an overview of a not so pleasant subject.  Hopefully the Beardsley family worked out all of these details without too much trouble. 

For more information on estate planning and other legal needs, or if you have a legal question you would like for me to address, please visit my website at, email me at, or call me at 512-863-5658.  My office is located in Tamiro Plaza, 501 South Austin Avenue, Suite 1320, in Georgetown, Texas.

No comments:

Post a Comment