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Disinheriting a child in a New Jersey will

| Oct 14, 2020 | Estate Planning |

There are rare circumstances in New Jersey when parents may consider disinheriting a child. Whether a son or daughter abandoned the family, abused a relative or the parent wishes the child to make an independent way in the world, courts have repeatedly upheld that parents have the right to choose what happens to their estate within certain limits.

Parents who intend to disinherit a child will need to establish a legally sound will containing the explicit desire to exclude the child by name. Failing to do so could result in a court overturning a will.

Understanding legal claims on an estate

Under New Jersey law Title 3B, children do have a right to receive an inheritance and will generally receive a fair portion of a parent’s estate unless a valid will clearly expresses the intent to disinherit them. If a parent dies intestate, if a court determines a will to be invalid or if a will does not properly address the distribution of an estate, the majority of the assets will pass to the surviving spouse, with the remaining portion passing evenly to children. Absent a surviving spouse, the entire estate will pass to children equally. These laws apply even for estranged family members.

New Jersey law explicitly protects the rights of spouses to inherit the lion’s share of a decedent’s estate. Thus, it is nearly impossible to disinherit a spouse without his or her consent. It is also nearly impossible to disinherit a minor child, as the law requires an estate to provide for minor children similarly to when the parent was alive.

However, the law does not offer these same protections to adult children or other family members. Thus, parents may disinherit adult children.

Disinheriting a child

Parents will want to name the child and express the clear intention to exclude them from the estate. Some may cite the reasoning in the will, but the law does not require it.

New Jersey law does provide that omission is not sufficient to disinherit a child, as the child may still lay claim to their inheritance unless the omission appeared to be intentional. Nevertheless, any such decision will meet contest, and the party in question will seek to demonstrate that the omission was a mistake. Thus, stating intentions clearly can help avoid misinterpretation.

Even with an explicit statement, most children will contest the validity of the will. A court may override a will if there is reason to believe that the decedent was under duress or not of sound mind when writing it. Family may also contest the origin of the will or any other factors, so planning a will carefully may ensure that it remains legally binding.