You know my stock response to such questions: Carefully. Very carefully.
The decision to disinherit a family member is rarely made easily ... or in a vacuum.
The reasons are as varied and different as the families themselves.
Whatever the motivation, you want to do it right to carry out your wishes and spare your other surviving family members from a protracted fight.
This very subject was the topic of a Market Watch article. The article responded to this question from a reader: “Can my 40-year-old long-lost daughter get my estate?"
Apparently, the reader had a teenage romance that resulted in a daughter.
Surprise.
He did not know about this daughter until she wrote to him after her mother identified him as the father before she died.
The reader noted that DNA testing confirmed paternity and this daughter is his only child.
Unfortunately, father and daughter do not get along and do not communicate.
Now, for the estate planning issue.
The father cohabitates with a woman and he wants her to inherit his home instead of his daughter.
Can he ensure this will happen and, if yes, then how?
Answer: Yes. But his estate planning must "specifically" exclude his daughter.
Why?
Well, the article does not go into detail.
However, if the reader were a resident of Kansas or Missouri and died owning his home solely in his name with no further "estate planning" to transfer the home to his girlfriend, then his daughter would inherit the home under the laws of intestate succession.
These are "default" estate distribution laws based on degree of family relationship that apply via the probate court under such circumstances.
Consequently, to bullet-proof his "disinheritance" objective the reader should: a) marry his live-in (why not make it official?) and b) either add her as a joint owner now (i.e., as a "joint tenant with rights of survivorship and not as a tenant in common" in Kansas or as a "tenant by the entirety" in Missouri), or make her the transfer on death beneficiary of the home under a properly executed and recorded beneficiary deed, or create a last will and testament or a living trust (with the home titled in said trust) leaving the home to her.
Note: In addition, after taking the steps identified above, the reader should specifically identify and disinherit his daughter by name (and her include by general reference any of her descendants by birth or adoption).
I usually add language that the client has "already provided for X to his satisfaction and X is not to receive anything further directly or indirectly from the estate" of the client. For good measure, you may want to add an in terrorem (no-contest) clause to declare "dead" anyone who challenges your estate plan.
Disinheritance, like planning for the inheritance itself, requires carefully planning and the skilled assistance of an experienced estate planning attorney to get it right.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
Reference: Market Watch (February 5, 2016) “Can my 40-year-old long-lost daughter get my estate?”
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