Can You Disinherit A Child In Massachusetts?

A child generally has no right under Massachusetts law to inherit from a parent, subject to a few exceptions, such as the legal obligation to pay child support (see L.W.K. v. E.R.C., 735 N.E.2d 359, 364 (Mass. 2000)).

Although a decedent can generally disinherit the decedent’s children, a child may:

• Have certain rights to the decedent’s assets when the decedent dies, including the right to exempt property and an interest in the decedent’s homestead in some circumstances ).
• Have the right to inherit under the intestacy statutes if the decedent dies with a will that was signed before the child was born and certain other conditions are met
• Inherit from the decedent inadvertently, even if the child was born before the decedent signed the decedent’s will and the decedent omitted the child from the decedent’s will with the intent to disinherit the child 

If a testator wants to disinherit a child or children, it is important that the testator make this intention clear in the testator’s will.

Limited Right of Children to Inherit

In certain circumstances a child has a right to inherit certain assets from the child’s parent, even if the parent did not otherwise provide for the child at the parent’s death.

Exempt Property and Family Support

If there is no surviving spouse, a decedent’s surviving children may be jointly entitled to an amount of exempt property with a value equal to $10,000. Exempt property includes:

• Household goods.
• Vehicles.
• Personal property.

(M.G.L. c. 190B, § 2-403.)

Surviving minor children that were supported by the decedent are entitled to an allowance during the administration of the estate. However, if the estate cannot pay all of the allowed claims, the surviving minor child’s allowance may not last more than one year. (M.G.L. c. 190B, § 2-404(a).) For additional information regarding exempt property.

Homestead

After the death of the testator, a surviving spouse and any minor children who occupy the homestead property as their primary residence have the continued benefit of the deceased spouse’s homestead exemption (M.G.L. c. 188, § 7).

After-Born or After-Adopted Children

A testator can disinherit a child who is living when the testator signs the testator’s will by providing for effective distribution of all the testator’s assets to persons other than that child. However, there are different rules for children born to a testator after a testator’s will is signed. If a child is born or adopted after a testator parent’s will is signed, and that child is not provided for in the will, that child is treated as a pretermitted child unless either:

• It appears from the will that the omission was intentional.
• The child received assets from the testator parent outside the will that were intended to be in lieu of a testamentary disposition.
• The will gave substantially all of the estate to the other parent of the omitted child, and the other parent:
  • survived the testator parent; and
  • is entitled to take under the will.

(M.G.L. c. 190B, § 2-302.)

If a child is treated as a pretermitted child, that child inherits from the testator parent. If there were no other children at the time the will was executed the child’s share of the estate is equal to that which the child would have received if the testator parent died without a will and is determined under the Massachusetts intestacy statutes. (M.G.L. c. 190B, § 2-302(a)(1).)

If the testator has at least one child living when the testator’s signs the will, the omitted child’s share is:

• Limited to the devises made to the living child or children.
• What the child would have received if included with the other child or children under the will, and the will gives an equal share to each child.
• Of the same character as the shares the other living children receive under the will, if feasible.

(M.G.L. c. 190B, § 2-302(a)(2).)

No Contest Clause

No contest clauses are included in wills to prevent a beneficiary of the will from contesting the will. The clause has no impact on a child disinherited in the will. If the client is worried about the disinherited child contesting the will, counsel should discuss with the client the pros and cons of including the child and a no contest clause in the will.

Inadvertent Inheritance

A testator can intentionally disinherit all the testator’s children without explicitly stating that intent in the will by giving all the testator’s property to beneficiaries other than the testator’s children at death. However, if this is done, a child the testator intended to disinherit could inadvertently receive a share of the estate under the intestacy rules regardless of the testator’s intention if gifts to beneficiaries named in the will fail (M.G.L. c. 190B, § 2-101 and see Gove v. Hammond, 430 N.E.2d 822, 822 (Mass. 1982)).

To avoid this the will should:

• Include appropriate contingency planning in case the primary beneficiaries predecease the testator.
• Explicitly disinherit the child so that the child does not inherit even if all primary and contingent beneficiaries predecease the testator.

Contingency provisions in a will should generally include:

• Provisions directing distribution of a predeceased beneficiary’s share to the descendants of the predeceased beneficiary or to a contingent beneficiary.
• An ultimate contingency provision.

Wills frequently name the testator’s intestate heirs as ultimate contingent beneficiaries. This means that if all other beneficiaries predecease the testator, the testator’s intestate heirs inherit. Intestate heirs include the testator’s children and their descendants in many circumstances. (M.G.L. c. 190B, §§ 2-101 and 2-103.) This means that if a testator leaves a child out of the testator’s will with the intention to disinherit the child, but names the testator’s heirs as ultimate contingent beneficiaries, it is possible for the child to inherit as an ultimate contingent beneficiary. This can be avoided most effectively if the child is both:

• Omitted by explicit provision in the will (M.G.L. c. 190B, § 2-302(b)).
• Explicitly excluded from the definition of heirs in the will

Reason for Disinheritance

The options in this Standard Clause do not include language stating the reasons the testator disinherited a child or other descendants (referred to as descendants in this Standard Clause). It is generally best not to state the specific reasons for a disinheritance in the will. Among other reasons, if any of the explanations the testator provides for disinheritance in the will are factually incorrect, the disinherited child may try to use the inaccuracy as grounds to contest the will. Counsel should discuss with the testator the potential negative effects of identifying specific reasons for disinheritance in the will and should generally advise against it.

Using This Standard Clause

When omitting a child or other descendants from inheriting under a testator’s will, counsel should review the will carefully in its entirety to ensure all provisions are consistent and clear and that a provision indicating the testator’s intent to omit a child does not contradict any other provision in the will. Counsel should both:

• Include a provision that states the testator’s intention to omit the child or descendants explicitly in the will ).
• Ensure that all existing will provisions that address inheritance and in particular the definition of terms that may otherwise include the omitted individual are consistent with the testator’s intent

This Standard Clause is intended to provide a starting point for the various provisions counsel may need to include or customize in a will to indicate the testator’s intent to omit a child or other descendants.

Conforming Terminology and Numbering

Counsel should ensure the terminology and numbering for sections within the will used in this Standard Clause is consistent with the rest of the will in which the Standard Clause is included. For example, counsel should revise the provisions in this Standard Clause as needed, if the will in which this Standard Clause is included refers to “Paragraphs” as “Sections” or any other identifier.

Incorporating Defined Terms

This Standard Clause assumes that the will in which it is included contains a defined terms article. Defined terms articles are commonly included in wills and define terms that have significance throughout the will. For an example of a defined terms article for a will.

The terms capitalized in this Standard Clause are capitalized to be consistent with the conventions and definitions used in the referenced example defined terms article, and the definitions provided in this Standard Clause are intended to be incorporated into the will’s defined terms article.However, counsel should:

• Conform any relevant defined terms in this Standard Clause to the requirements of the will in which the Standard Clause is included. For example, if the will indicates that defined terms are italicized or bold rather than capitalized, counsel should italicize or bold all defined terms accordingly.
• Ensure that any defined terms in the will apply as intended.

When incorporating and conforming defined terms, counsel should also recognize that:

• Certain terms (such as the term “Will”) may not be defined in the referenced example defined terms article, but are capitalized throughout the provisions of this Standard Clause. This is because these terms are typically defined at the beginning of a will, at their first mention.
• Certain terms are defined within the provisions of this Standard Clause (such as “my children”) because it is generally clearer to define them in the context of the provision in which they appear rather than in the defined terms article of the will. However, in some cases, counsel can move those definitions to the defined terms article in the applicable will if that is preferred. For additional information regarding when it makes sense to define a term within the context of the article in which it appears rather than in a separate defined terms article,