“Don’t I have to leave him a dollar or something?” I get this question, or something similar to it, quite frequently. A client wants to disinherit some family member—whether a child or a sibling—and the client believes that he has to leave the disinherited child some arbitrary and minor dollar amount.
The fact of the matter is, the only person you cannot disinherit is a spouse. Even if you disinherit your spouse, your spouse has the right to file a claim for a share of your estate. In New Jersey, that right to make a claim is called the “elective share.”
The elective share is one-third of the “augmented estate.” Essentially, to calculated the disinherited spouse’s share of the deceased spouse’s estate, you take all the assets in both spouse’s name, add them together, and give the disinherited spouse one-third of the combined estate.
If the surviving spouse already owns one-third of the estate in her name, then she receives no part of the deceased spouse’s estate. If she owns less than one-third of the combined estate, then she gets an amount sufficient to bring her up to one-third of the estate.
As the name may imply, the surviving spouse must elect to take her share of the estate. If she fails to make the election within six months of the executor being appointed to administer the estate, then she loses that right for all time.
With the exception of the spouse, there is no other person who has an unfettered right to a person’s estate. So, for instance, you don’t have to leave your estate to your children or your siblings or whomever you may think you cannot disinherit. If you failed to have a Will, then your estate is going to pass by intestate succession to certain people. But if you have a Will, the choice of who will receive your estate is yours to make.
Leaving someone one dollar when your estate is worth $400,000 isn’t going to appease anyone. In fact, it may anger them more. For instance, if mom has four children and an estate worth $400,000, her leaving $1 to one son and the remainder of her estate to the other three won’t make the child who is receiving $1 happy. It isn’t going to make the child say, “Well, mom left me $1 so there’s nothing I can do about it.”
In fact, by leaving the child $1, you make the child a beneficiary of the estate. As a beneficiary, the executor, who is probably another one of the mother’s children, is obligated to account to the effectively disinherited child.
An interested party—and a child would certainly be an interested party—can always challenge the mother’s Will, claiming that the child lacked testamentary mental capacity to make the Will or that the mother was unduly influenced to draft her Will the way she did. Perhaps mom suffered from dementia for years before she died and couldn’t comprehend the nature of her actions in making the Will. Or, perhaps one child was unduly influencing the mother to disinherit her child.
Leaving the disinherited child $1 doesn’t prevent that child from raising any and all claims he may have against the Will. In my opinion, it does nothing other than make him a beneficiary of the estate, whereas if he were disinherited then he wouldn’t be a beneficiary.
If you are going to disinherit a close relative, such as a child, then you should mention the child in the Will. For instance, “I have four children: Moe, Larry, Curly, and Shemp.” The Will could then go on to leave everything to three of the children and make no mention of the other child.
You shouldn’t state why you are disinheriting the child, because that only service to give the child something to argue about. For instance, “I am not leaving Shemp any portion of my estate because he stole money from me.” Now, Shemp can come in and say, “I didn’t steal money from her. She wasn’t thinking straight.”
Leaving someone $1, or some other magical, small dollar amount, isn’t going to prevent people from challenging your Will, but having a lawyer who knows what he’s doing when drafting your Will may.