When you pass away, what will happen to the assets you’ve spent a lifetime acquiring? Developing an estate plan is a process that keeps you in control if you become incapacitated, and even when you’re gone. For some people, this may mean taking action to deliberately exclude or disinherit certain individuals from their wills or trusts — including their own adult children.
It is certainly possible to disinherit a child from your will — provided that the will maker (known as the testator) takes care to use the correct mechanisms and follow all proper legal procedures at every step of the way. With that being said, this is not a decision to be made lightly, and it is one that could ultimately be challenged in court depending on the specifics of your circumstances. Similarly, if you are not careful and deliberate about your actions, the very people you are seeking to exclude may still stand to receive some of your estate through Michigan’s laws of intestate succession or through exempt property rights.
Why Would Someone Disinherit a Child in Michigan?
Everyone’s circumstances are different, and there are any number of personal reasons why someone may choose to disinherit a child from their will.
In some cases, it could be due to a poor personal relationship. The simple reality is that family members become estranged all the time, for any number of different reasons — whether because the parent and child have a contentious or difficult relationship, or because the child has deliberately isolated themselves from their family.
As Nathan R. Piwowarski once put it succinctly in an article for the Michigan Bar Journal, there may also be practical reasons to disinherit a child:
- The child may have severe debts or problems with creditors, which could immediately impact any funds or property they receive
- The child may have mental illness or addiction, and a distribution could be used to “fund self-destructive behaviors”
- You may have already taken action to provide substantially for your child (or children) outside of probate — perhaps through beneficiary designations, trusts, or lifetime gifts
- The child may be physically, mentally, or developmentally disabled and receiving government benefits; in such a situation, receiving an allowance or inheritance might actually disrupt their ability to access important programs like Medicaid or Supplemental Security Income
Disinheriting a Child in Michigan: Important Considerations
All told, if you are weighing the possibility of disinheriting a child from your estate in Michigan, there are a number of important considerations to keep in mind and explore with the insight and guidance of an experienced and knowledgeable probate and estates attorney.
Michigan law makes provisions for children born or adopted after the execution of the will
One important thing to remember is that Michigan law does make some provisions for omitted children. Specifically, pursuant to MCL 700.2302, if a testator fails to provide in his or her will for a child born or adopted after the execution of the will, then the omitted after-born or after-adopted child is entitled to receive a share unless:
- It appears from the will that the omission was intentional
- The testator provided for the omitted after-born or after-adopted child by transfer outside the will, and the parent’s intent for a substitute transfer can be established or reasonably inferred
In cases where the omitted child does stand to inherit, the share of the omitted after-born or after-adopted child would consist of:
- An intestate share, if the decedent had no other living children
- A reasonable share equal to that devised to the decedent’s other children. Under EPIC, in abating the devises of the other children, the court shall “preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.”
What’s more, if a testator fails to provide for a living child in their will because they believe the child to be deceased, then the child is entitled to share in the estate as if they were an omitted after-born or after-adopted child.
Can children be excluded from taking a share of exempt property?
It is important to remember that Michigan law makes allowances for spouses and children to hold onto some modest property, to help ensure that they do not become impoverished due to the passing of a loved one — even if it may mean somewhat limiting or overriding “testamentary consultationdom,” as the Michigan Bar Journal puts it.
One of the most important things to keep in mind for the issues we are discussing here is exempt property, as described in MCL 700.2404.
This provision states that a decedent’s surviving spouse is entitled to “household furniture, automobiles, furnishings, appliances, and personal effects from the estate up to a value not to exceed $10,000.00* more than the amount of any security interests to which the property is subject.”
*Adjusted to $16,000 as of 2020, as provided in MCL 700.1210; you can find a chart of relevant cost of living adjustments from 2001 through 2020 here, courtesy of the Wayne County Probate Court. An experienced and knowledgeable probate and estates attorney can also help you determine the most up-to-date figures.
If there is no surviving spouse, then the decedent’s children may be entitled jointly to the same value, unless they are specifically excluded.
Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except as necessary to permit payment of administration costs and expenses, reasonable funeral and burial expenses, the homestead allowance, and the family allowance. Exempt property rights are in addition to a benefit or share passing to the surviving spouse or children by the decedent’s will, unless otherwise provided, by intestate succession, or by elective share.
These provisions were famously challenged in the case In re Jajuga Estate, in which the Michigan Court of Appeals ultimately determined that the decedent’s children should receive exempt property from the estate, even though her will explicitly disinherited them.
This led to 2018 PA 143, additional language added to the statute making it clear that a decedent may exclude one or more of the their children from receiving exempt property or assets by:
- Expressly stating by will that the child takes nothing, or the child takes an amount of $10.00 or less from the estate
- Expressly stating by will that the child is not to receive exempt property under this section.
The Importance of Working With an Experienced Michigan Estate Planning and Probate Attorney
In short? As with so many other matters relating to estate planning and probate, attempting to exclude a child for any reason can become very complicated, very quickly.
As Piwowarski writes for the Michigan Bar Journal:
[W]hile 2018 PA 143 fixed what was broken, it did not eliminate the need for nuance and close familiarity with the EPIC when preparing, administering, and litigating wills and trusts.
It is important to have a thorough understanding of all of the elements that may go into a Michigan estate plan and how they may be used together — including both testamentary and nontestamentary transfers. It is also critical to receive insight and guidance tailored to the unique specifics of your situation.
A probate and estates attorney can help address your questions and navigate the process from beginning to end, so that you can secure the best possible outcome for your circumstances, whatever they may be.
If you’re based in Michigan, Attorney Dean E. Patrick can help you plan for the future through estate planning — while also gaining a better understanding of how your loved ones may be impacted throughout the probate and estate administration process.
Mr. Patrick is knowledgeable on all aspects of Michigan probate, with years of experience as a practicing attorney. Whenever you’re ready to get started, he is here to listen and learn more about your circumstances, and start finding a solution to your desired outcome, whether you are a testator, a personal representative, an heir, a creditor, a named beneficiary, an omitted child, or a widow/widower.
If you have any probate-related issue that has interrupted your life, our entire firm will work hard to accomplish your goals – with the expertise, empathy, intellect, and professionalism that your matter deserves at every step of the way.
Ready to keep the conversation going? The Patrick & Associates, PLLC.. is conveniently located in Southfield, Michigan, close to both Wayne and Oakland Counties. You may click here to arrange your initial consultation or call us at (833) 469-4897 today.
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