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Are children entitled to an inheritance?

This is a question that is frequently asked to estate planning lawyers, and the answer is no. Parents are not legally required to leave anything to their children.

If an unmarried parent dies without a will, the rules of intestacy would result in all of the parent’s assets being divided equally among the parent’s surviving children. (If the parent’s spouse is still alive, the assets would transfer to him or her.)

However, if a parent executes a will and chooses to leave a child or all children out of it, there is nothing the children can do except contest the will.

In order to successfully overturn a will, disinherited children must prove that:

  • the will was improperly executed (such as never being signed); or
  • the parent was mentally incompetent (did not understand what he or she was doing); or
  • the parent was acting under duress or undue influence.

One important thing to keep in mind is that mental incompetency standard is quite low. What that means is if the parent knew what he or she was doing and wanted to go through with it the will stands. Because a parent was mean or treated a child unfairly is not reason enough to have a will thrown out.

For example, let’s say a man has a wife and a couple of children. The man then leaves his family for another woman and starts a family with her. The man could choose to leave his assets to only the children from his second family, thereby disinheriting the children from the first family.

Probate courts don’t care about what is fair or what is morally right, they care about the law and the intentions of the decedent (the person who died). So long as the decedent’s will is legally sound it will be honored.

However, it’s worth noting that a person is not allowed to disinherit his or her spouse.

Source: Newsday, "Parents, children and inheritance rights,” Lynn Brenner, Nov. 19, 2014

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