Children's Rights in Estate Wills

By Heather Frances J.D.

Your state’s laws determine who inherits your assets if you don’t have a valid will when you die; your spouse and children are among the first to receive property from your estate. However, you can change this “default” distribution scheme by creating a will describing how you want your property to be distributed. Your will can give inheritance rights to your children, though you cannot disinherit your spouse under most circumstances, even if you want to give his share to your children.

Surviving Spouses

If you leave a valid will, meaning a will you created under your state’s laws, its terms determine how your property is distributed, so you can use your will to give your children the right to inherit from your estate. However, your state’s laws likely will not allow you to completely disinherit your spouse. A surviving spouse is generally entitled to inherit a portion of your estate, called an elective share, no matter what your will says, though the amount of this share varies between states. For example, New York law gives surviving spouses the right to receive $50,000 or one-third of the estate, whichever is greater, even if that means children receive a smaller share than provided in the will.

Minor Children

In your will, you can name minor or adult children as beneficiaries, giving them inheritance rights. However, minor children cannot legally manage their inheritance until they reach adulthood, so an adult must manage your minor child’s share in the meantime. Though the exact process varies by state, large inheritances may require the court to appoint someone to manage the inheritance for the child while small inheritances may allow an adult -- typically a relative -- to receive the money on behalf of the child under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act. You can avoid confusion by naming a trustee for your minor child in your will and establishing a trust to hold the inheritance until he reaches an age you establish in the trust documents or your will.

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Pretermitted Heirs

State laws recognize that you may have additional children after you create your initial will, but you may not remember to change it after these children are born. Similarly, it is possible for parents to simply forget to list a child in the will though they did not intend to disinherit the child. Thus, pretermitted heir statutes say that a child who was not specifically disinherited in your will can assert a right to receive an equal portion of your estate as your other children received. For example, if you have four children but only list three in your will, your fourth child has a right to inherit the same share as the other three. If you wish to disinherit the fourth child, you must specifically state that wish in your will.

Contesting the Will

Your children may contest your will if they believe it is invalid, meaning any of your children can bring a lawsuit in your state’s courts to challenge the will’s validity. For example, a child could believe you were under undue influence when you signed the will because you left a large portion of your estate to a relative who was present when you signed the document. If the will is declared invalid, it may be completely tossed out, leaving your family to inherit shares of your estate based on the inheritance structure in your state’s laws. To discourage challenges to your will, you can include an "in terrorem" clause. Such clauses, sometimes called no-contest clauses, state that a person who challenges the will loses his inheritance under the will if the challenge is not successful. If the challenger wins the contest, he may obtain a larger inheritance, but he risks losing everything should he lose.

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The Rights of Children From a First Marriage

References

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