Be Clear About Naming and Disinheriting Children

When making Nolo’s Online Will, you are asked to specify whether you have children, and if you, the program asks you to provide their names and birthdates.

This information is importent to include in your will because most states have laws that protect children from accidentally being left out of a will—these are sometimes called omitted child or pretermitted child laws. This type of law can serve it’s purpose when a parent dies without updating a will to include recently born children. In that case, the child or grandchild can petition the court for a portion of the deceased person’s estate—usually the amount is equal to the amount the child or grandchild would receive through intestate succession.

However, problems arise when a parent purposefully doesn’t include a child in a will. In that case, the child can still claim a portion of the parent’s estate, even if that was not the parent’s intent.

To ward against this problem, a will should include the names of all of the will maker’s children, plus a statement that clearly states that if a child is not given any property, that the non-gift is intentional.

This issue also applies to grandchildren when the will maker’s child (the grandchildren’s parent) is no longer living.

The interview for Nolo’s Online Will prompts you to name all of your children, and also asks you to agree to a statement about intentionally not leaving your child or grandchild any property. The statement will be included in your will and reads something like this:

If I do not leave property in this will to my child, my failure to do so is intentional.

If you intend to leave property to your children and grandchildren, then you can agree to this statement because you do not intend to not leave property to your children and grandchildren. And if you do intend to leave a child or grandchild out of your will, you can agree to this statement because it clearly states this intent.

In most cases, you are not obligated to leave a child or grandchild any property. Spouses are a different matter—do not disinherit a spouse without consulting an attorney first. Learn more about Inheritance Rights.

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