How Estrangement Affects Estate Planning

Unfortunately, family rifts sometimes become much more serious than temporary disagreements.

The result may be estrangement, which generally means that family members are alienated, separated, or no longer in contact. However, the breakdown of a personal relationship does not necessarily end the legal relationship.

A spouse may move out of the family home and have little or no contact with their spouse or children. A child who has experienced abuse may live with another relative and avoid contact with a parent. A parent may end contact with an adult child who has committed crimes or violated their trust.

These situations are unfortunate, but they occur more often than many people realize.

You may be surprised to learn that limited contact, or even a complete absence of contact, usually does not eliminate an estranged spouse’s or child’s legal right to inherit. This is especially true when there is no estate plan clearly stating a different intention.

Does Estrangement End Inheritance Rights?

No. Estrangement by itself generally does not end a family member’s inheritance rights.

The law focuses on legal relationships, valid estate planning documents, beneficiary designations, and property ownership. It does not usually consider whether family members were emotionally close or regularly communicated.

An estranged spouse may still have rights under intestacy and elective-share laws. An estranged child may still inherit under intestacy laws or an outdated estate plan.

If you do not want an estranged family member to inherit, you need an estate plan that clearly and legally addresses that intention.

How Does Spousal Estrangement Affect Inheritance?

Living apart from a spouse is not necessarily the same as being divorced.

A couple may have separate homes, separate finances, and no meaningful relationship for years. If they remain legally married, however, the surviving spouse may retain important inheritance rights.

Those rights depend on the state where the deceased spouse was legally domiciled and the type of property involved.

An Estranged Spouse May Inherit Under Intestacy Law

If a person dies without a valid will or trust, the person is considered to have died intestate.

State intestacy laws then determine who receives the probate estate. These laws create a default estate plan based on legal family relationships.

They do not generally ask whether the surviving spouses were happy, living together, or communicating.

Maryland Intestacy Rights

Under current Maryland law, a surviving spouse or registered domestic partner may receive some or all of the probate estate. The result depends on whether the deceased person also left minor children, adult children, or children from another relationship.

The Maryland Register of Wills provides a current intestate succession chart explaining how the probate estate is divided.

For example:

• If there are no surviving children, the spouse or registered domestic partner generally receives the entire probate estate.
• If there is a surviving minor child, the spouse or registered domestic partner generally receives one-half, and the children divide the other half.
• If all surviving children are adults and are also children of the surviving spouse or registered domestic partner, the spouse or partner generally receives the entire probate estate.
• If at least one adult child is not also the child of the surviving spouse or registered domestic partner, the spouse or partner receives the first $100,000 plus one-half of the remaining probate estate. The children divide the balance.

These rights can apply even if the spouses were estranged when one of them died.

An Estranged Spouse May Have Rights Even When There Is a Will

Creating a will that leaves nothing to an estranged spouse may not be enough to disinherit that spouse completely.

Many states provide special protection for surviving spouses. Depending on the jurisdiction, the spouse may have rights under omitted-spouse laws, elective-share statutes, or both.

Omitted-Spouse Protections

Some states protect spouses who were unintentionally omitted from a will.

This issue commonly arises when someone creates a will, later marries, and then dies without updating the will.

Depending on state law and the language of the document, the surviving spouse may be entitled to an inheritance even though the will does not mention them.

The outcome may be different if the will clearly shows that the omission was intentional or if a valid marital agreement addresses inheritance rights.

Elective-Share Rights

An elective-share law allows a surviving spouse to claim a legally protected portion of the deceased spouse’s estate instead of accepting what the will provides.

This means that an estranged spouse may be able to claim an inheritance even when the will expressly attempts to disinherit them.

Maryland provides a formal process for a surviving spouse to elect to take an elective share. The election is subject to specific rules, calculations, and deadlines.

The Maryland Register of Wills lists the deadline as the later of nine months after death or six months after the first appointment of a personal representative, subject to applicable extensions and exceptions.

Which Property Is Included?

Elective-share calculations vary by state.

Some states calculate the share using only the probate estate. Other states consider a broader group of assets, which may include certain trust property, beneficiary-designated accounts, or property transferred before death.

Because these rules are technical, moving property outside a will does not automatically prevent a surviving spouse from asserting a claim.

Before changing ownership or beneficiary designations, speak with an attorney who understands the laws of your jurisdiction.

How Does Child Estrangement Affect Inheritance?

Estrangement also does not automatically end a child’s inheritance rights.

If a parent dies without an estate plan, an estranged child may inherit under the state’s intestacy statute. The length or nature of the estrangement generally does not change the child’s legal relationship to the parent.

Under Maryland intestacy law, children may receive some or all of a parent’s probate estate depending on which other family members survive.

What If the Parent Has a Will?

A child may also inherit under an existing will, even if the parent and child later become estranged.

If the will names the child as a beneficiary and the parent never changes it, the estrangement alone generally does not remove the child from the document.

The parent must properly revise or replace the will.

Crossing out the child’s name, writing changes on the document, or simply telling relatives about the decision may not create a valid amendment.

What About a Child Omitted From the Will?

Some states protect children who appear to have been unintentionally omitted from a will.

This issue often arises when a child is born or adopted after the parent signs the document. Depending on state law, the omitted child may be entitled to the share they would have received if the parent had died without a will.

These protections may not apply if the will clearly shows that the parent intentionally excluded the child or provided for the child in another way.

The exact language matters.

How Can You Address Estrangement in Your Estate Plan?

If you do not want an estranged family member to inherit, relying on the estrangement itself is not enough.

Your estate plan should state your intentions clearly and coordinate all the ways your property may pass.

Clearly Address an Estranged Child in Your Will

A parent who intends to disinherit a child should state that decision clearly in a properly drafted will.

The document does not need to contain a long explanation or list every reason for the decision. Detailed accusations or hostile language can increase family conflict and may encourage litigation.

A direct statement that the omission is intentional may be more effective.

Should You Leave the Child a Small Inheritance?

Some parents consider leaving an estranged child a small amount rather than disinheriting the child completely.

This strategy may be combined with a no-contest clause, which can reduce or eliminate a beneficiary’s inheritance if the beneficiary unsuccessfully challenges the estate plan.

However, no-contest clauses are not treated the same way in every state. A small gift may also give the estranged child beneficiary status and additional rights to information or notice.

Do not assume that leaving one dollar or another token amount will prevent a will contest. An attorney should determine whether this strategy is appropriate and enforceable in your jurisdiction.

Use a Trust When Appropriate

A revocable living trust can specify who will receive trust property after your death.

If you do not want an estranged child to benefit, the child may be omitted from the trust. The document should also identify contingent beneficiaries and address what happens if another beneficiary dies before you.

A trust may provide more privacy than a will because properly funded trust property can pass without probate.

However, signing a trust alone is not enough. Property must be transferred to the trust or otherwise coordinated with it.

Review Beneficiary Designations

A will or trust does not necessarily control every asset.

Life insurance, retirement accounts, annuities, payable-on-death accounts, and transfer-on-death accounts generally pass according to the beneficiary designation on file.

If an estranged spouse or child remains named as the beneficiary, that person may still receive the asset even if the will says otherwise.

Review the beneficiaries on:

• Life insurance policies
• Retirement accounts
• Investment accounts
• Annuities
• Payable-on-death bank accounts
• Transfer-on-death accounts
• Employer-provided death benefits

Some retirement plans provide special protections for spouses. Changing the beneficiary may require the spouse’s written consent.

Your attorney and financial advisor can help coordinate these designations with the rest of your estate plan.

Consider Property Ownership

Some property passes automatically to a surviving co-owner.

For example, jointly owned property with a right of survivorship may pass directly to the surviving owner after one owner dies. A will generally does not override that ownership arrangement.

If you jointly own a home, bank account, or investment account with an estranged spouse, review how the property is titled.

Do not remove a spouse or change ownership without legal advice. Property rights, divorce orders, marital agreements, tax consequences, and creditor issues may affect what changes are permitted.

Consider Marital Agreements and Lifetime Planning

Prenuptial and postnuptial agreements may be used to define or waive certain inheritance rights.

A valid agreement can address:

• Elective-share rights
• Rights to particular property
• Beneficiary designations
• Obligations at death
• Rights created by marriage
• Property division following divorce

Lifetime gifts and trust planning may also be useful in some situations. However, transfers made solely to defeat a spouse’s legal rights may be challenged under applicable state law.

These strategies require careful legal and tax planning.

Legally Ending the Marriage Can Prevent Unintended Results

For estranged spouses, completing a divorce may be the clearest way to end many inheritance rights.

Living separately, maintaining different finances, or intending to divorce in the future may not be enough.

After a final divorce, a former spouse generally no longer has the same intestacy or elective-share rights as a current spouse. However, a divorce does not automatically solve every estate planning issue.

Update the Estate Plan After Divorce

State law may revoke certain provisions for a former spouse in a will after divorce. However, those rules differ and may not apply to every document or asset.

After a divorce, review:

• The will
• Revocable and irrevocable trusts
• Powers of attorney
• Advance healthcare directives
• Life insurance beneficiaries
• Retirement account beneficiaries
• Payable-on-death accounts
• Transfer-on-death accounts
• Jointly owned property
• Guardianship nominations
• Digital account instructions

A divorce decree or property settlement agreement may also require certain beneficiary designations to remain in place.

Do not rely solely on automatic state-law revocation rules.

Document Your Intentions Carefully

A person who disinherits an estranged family member may face a greater risk of a will or trust contest.

The estranged relative may allege that the person lacked capacity, was subjected to undue influence, or did not understand the document.

An attorney can help create a clear record of the planning process.

Depending on the circumstances, that may include:

• Meeting privately with the client
• Documenting the client’s instructions
• Confirming the client understands the plan
• Using clear language in the will or trust
• Avoiding inflammatory explanations
• Following all signing and witnessing requirements
• Coordinating beneficiary designations
• Reviewing the plan regularly

The goal is to state the decision clearly without adding unnecessary hostility.

Estrangement Should Trigger an Estate Plan Review

An estate plan should be reviewed whenever a significant family relationship changes.

This includes:

• Separation from a spouse
• Filing for divorce
• Reconciliation
• Estrangement from a child
• Renewed contact with an estranged relative
• Abuse or financial exploitation
• Changes in property ownership
• A new marriage or partnership
• The birth or adoption of another child

Your estate plan should reflect your current legal relationships and intentions, not the relationships that existed when the documents were first signed.

We Can Help You Address Estrangement in Your Estate Plan

One of the most important goals of estate planning is ensuring that your wishes are carried out.

If you want to prevent an estranged family member from inheriting, your estate plan must clearly and legally express that intention. The plan should also address beneficiary designations, property ownership, spousal rights, and the possibility of a legal challenge.

McDonald Law Firm can help you consider your options while minimizing additional conflict within your family.

Attorney André O. McDonald assists clients in Howard County, Montgomery County, and the District of Columbia with estate planning, special needs planning, Medicaid planning, and related matters.

To schedule a consultation, call:

• Howard County: 443-741-1088
• Montgomery County: 301-941-7809
• District of Columbia: 202-640-2133

DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE, OR TAX ADVICE.