I occasionally have clients who are very disappointed with a child of theirs, even angry. As a way of demonstrating their extreme displeasure, they punish the child by disinheriting them. They write them out of the will or the trust so that they receive nothing from the estate. They will often include a provision that reads something like this:
“I have two children, Jane Doe, born on January 20, 1983 and John Doe, born on December 5, 1985. All references in this agreement to “my children” are references to Jane and John Doe.
References to “my descendants” are to my children and their descendants.
However, I am specifically disinheriting Jane Doe. Therefore, for the purposes of this agreement, Jane Doe is presumed to have predeceased me.”
Because this sends such a powerful message and is a last, irrevocable, statement of anger or even hate, I counsel my clients to think long and hard before disinheriting a child. While it is my duty as an attorney to carry out the wishes of my client, it is also my duty as a counselor to point out the ramifications of their decisions.
I recently discussed this issue with Ryan Johns, an investment advisor with the Snyder Financial Group in Tampa. He had an interesting philosophy on the subject that I found compelling.
While not immediately obvious, one does have the ability to speak from the grave. By including your wayward child in the distribution of the estate, you are communicating that you still care. Maybe you disapprove of the choices they have made, but despite everything, you still love them. Including language which communicates your disappointment, but also your love, may have the effect of influencing their lives in a way that you approve. Demonstrating your love through your generosity may cause them to re-think their attitudes through your example.
If substance abuse or financial irresponsibility is the issue, it is possible to express your concern and avoid supporting abusive behavior by including provisions that give the trustee the discretion to suspend mandatory distributions and withdrawal rights from the trust until the Trustee, in the Trustee’s judgment, determines that the beneficiary is fully capable of caring for himself or herself and is no longer likely to dissipate his or her financial resources.
Alternatively, disinheriting the child tells them very bluntly that you no longer care. You have given up. Rather than causing remorse and reconsideration, it will likely cause resentment. It may very well have the effect of validating their decision to behave in the way that most offends you.
Which choice has the best chance of influencing their future decisions and the memories they have of you?